Online Safety Bill [HL]

Baroness Howe of Idlicote Excerpts

Friday 11th December 2015 Lords Chamber

Moved by

[Baroness Howe of Idlicote]

1: Clause 1, page 2, line 17, after “operator” insert “or provider or operator designated by the Secretary of State under subsection (1)(d)”

[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.

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

My Lords, I recognise the noble Baroness, Lady Howe, for her unwavering commitment to this agenda, and all those who have spoken and contributed to the Bill thus far. As you know, the Government are absolutely committed to the protection of children online, and we must acknowledge the significant and hugely encouraging progress that has been made in the UK on a self-regulatory and voluntary basis. Without legislation, the UK Council for Child Internet Safety has played a vital role in this process. This multi-stakeholder approach to internet safety draws together government, charities, and the internet and mobile industries, and provides a highly effective approach to internet safety that is the envy of our international equivalents.

This, in and of itself, is a future-proofing strategy. The Family Online Safety Institute, an international organisation based in Washington DC that works globally to drive up internet safety, says that the UK is,

“at the forefront of online safety and best practice”,

and that UKCIS is at the core of that.

The first part of this Bill, to which it is proposed to add Amendments 1 and 2, would set out additional duties on internet service providers, mobile phone operators, Ofcom and Ministers in respect of providing a safe internet service for children and information about online safety. This is beyond the self-regulatory regime of family-friendly filters already voluntarily applied by all major ISPs and mobile phone operators in the UK. However well intentioned the drafting of such future-proofing clauses may be, this is, as has been said, a constantly moving target. We have no reason to believe that the successful, voluntary approach led by industry will change in future. Nor do we expect that such an approach would be incapable of addressing these issues as they come up or the arrival of new operators, services and platforms.

Ofcom regularly publishes reports on internet safety measures and a forthcoming report will address the noble Baroness’s concerns. We feel that there is no need to set out arrangements in statute to require this at further intervals because they already do it voluntarily. Furthermore, all mobile phone operators provide filters as default-on, with age-verification controls in place before any changes can be made or filters removed. These filters are underpinned by an independent framework provided by the BBFC to define unsuitable content for under-18s, based on its classification guidelines.

However, as my noble friends and colleagues have mentioned, there is always more that can be done, and no filters or technological tools will be 100% successful all the time. It is crucial that parents continue to engage with their children’s internet experiences and ensure that they build awareness of and resilience to things they see on the internet which may upset them or cause them harm. It is also vital that we, as the Government, continue our effective and productive relationships with industry and Ofcom to consider how our world-class internet safety protections can be made even better. Great progress has been achieved in the UK through voluntary activity, with industry working together with Government and the charity sector in an effective and collaborative way. We have no reason to expect this effective partnership to change.

[Baroness Howe of Idlicote]

My Lords, I am very grateful to everyone who spoke in support of the amendment. I am somewhat disappointed by the reply of the Minister, though clearly she approves of the effect of some of what we have achieved along the way. As we tried to make clear, we think the time has come for rather more fat to be added to make rather less of this material available. As has been mentioned, more children could be damaged by it in the run-up to the next meeting, when we have yet another Bill to look at. However, this is Committee and we will no doubt look at coming back to all this on Report. For the moment, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Lord James of Blackheath (Con)]

As a non-lawyer, may I intervene with a query? The phrase “adult” services is a colloquial euphemism. In my understanding, or non-understanding of the law, it is interpreted as to the literal use of the language. Would not it be unambiguous and better if it was just to say “pornographic”?

[Baroness Howe of Idlicote]

My Lords, I congratulate the noble Baroness, Lady Benjamin, on her amendment, which put the whole theme very effectively. We can all only do our best to re-emphasise all these points, because they are so vital.

We have heard a good deal about age verification in relation to pornographic websites since the publication of the Conservative manifesto, and rightly so. The commitment is of seminal importance, and I very much welcome it. However, we should not lose sight of an entirely different application of age verification in the online world, which the noble Baroness has raised in this debate. Filtering as a child protection mechanism is only really credible if filters are lifted in response to requests from adults. To avoid confusion, let me be clear about what I mean when I talk in terms of lifting filters, and what I do not mean. Having a robust filtering system does not mean guaranteeing that no one with special expertise will be able to bypass the filters. That is beginning to be made clear—I hope so—because many people have mentioned it to the Minister.

I fully recognise, as do most of us, that quite a number of young people will work out how to do bypass filters. My point has never been that a robust filtering system makes the internet safe—only that it makes the internet safer. What I am talking about here is the facility that an adult, regardless of whether or not they are a computer expert, should be able to access to lift adult content filters if they decide they do not want them anymore. While a robust filtering system cannot be expected to guard against those young people with real computer expertise who can work out how to bypass filters, it must ensure that the mechanism that ISPs make available to their customers to switch off the filters is subject to age verification.

To have filters in place that anyone can lift without age verification is a bit like saying that we are doing our best to promote security by providing doors, even though all the doors are unlocked. In this context, a so-called closed loop system whereby an ISP will send an email to an account holder informing him that the filter settings have been changed is completely unacceptable. As other noble Lords have pointed out, age verification takes place before an age-restricted activity occurs, not after it. As the polling demonstrates, a significant number of people would never open an email from their ISP. The noble Lord, Lord Morrow, made that point, and I could not agree with him more. I very much hope that the Government will start taking note of this aspect of the age verification challenge as well as in relation to web crime.

The Bill, which requires users to decide whether they want to access adult content, subject to age verification checks, would help them rise to this challenge. Clause 1(4)(b) requires that a provider of a service has to have age verification that meets the standards set out in Clause 2. I am grateful to the noble Baroness, Lady Benjamin, for moving her amendment, which makes explicit this very sensible requirement. I hope that on this occasion the Minister will have taken in what has been said and will do something about it.

[Lord Stevenson of Balmacara]

My Lords, like the noble Earl, Lord Erroll, I think this is a logical amendment which follows the way in which the promoters of this Bill are taking it forward. It fits well into the logic of what we have heard so far, and it should be supported. As many noble Lords have said, age verification lies at the heart of this issue. It is not just in relation to adult content—however it is to be described—but also in relation to things such as gambling access and more generally. As we move into the digital age and as consumers increasingly exercise online purchasing power, there will be other issues where it is important to make sure that age is verifiable. I am not sure that we have got to that point. That makes the Government’s response so far rather confusing, and I will be interested to hear what the Minister says on this amendment. They seem quite happy to go with the crowd on populist measures, talking up what should happen here, but they seem reluctant to take the necessary steps to enforce them in a way that will give confidence to those who have to use these systems that they will work. Like the noble Baroness, I am looking forward to what the Minister will say.

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[The Earl of Erroll]

I totally accept that. I was just using it as an example of where legislation has gone through in haste with very good intentions but it has not worked because it has not been thought through technically. Checking age is quite complex—for various reasons I prefer the word “checking” to “verification”. There are lots of ways of doing it but it is difficult to produce something that is workable in the real world. Credit cards are not the answer, and the net neutrality principle coming out of Europe will also cause problems. All sorts of things like that have to be taken into account. Getting it right in the long term for children’s safety is much more important than trying to rush through something that looks good. We should remember the saying “Legislate in haste and repent at leisure”.

[Baroness Howe of Idlicote]

I congratulate the noble Lord, Lord Morrow, on his amendment, which he moved so ably, not least because it highlights one of the key points that has been made repeatedly in debates not only on this Bill but on the many previous online safety Bills.

I have never been persuaded that the voluntary filtering agreement between the big four ISPs is anything other than a very temporary measure. In the first instance, I believe that filtering is sufficiently important to warrant a statutory foundation. In the second instance, I believe it is important for the Prime Minister to press the big four ISPs to introduce a robust filtering regime for the sake of the children in the house that they serve. If it is important for him to agree to do that then, as others have mentioned, it is equally important that he does the same for the children in houses served by other ISPs. Unless we believe that some children are more important than others, surely we must operate on the basis that all children are worth fighting for just as much as those serviced by the big four. If it falls to all of us in this current attempt to bring in an online safety Act to support and speak up for the children in this group, of course we will continue to do so.

In my view, the only sensible way forward here is an even-handed statutory approach, as set out in Clause 1. It should relate, as the noble Lord’s amendment proposes, to Ofcom’s reporting of filtering as well as to the filtering itself. If the Government now have to make statutory provision for filtering because of new EU legislation, it certainly would be indefensible not to apply the new provision to all providers. With this in mind, and as I and others have said, we would be more than happy for the Government to take aboard and use this part of the Online Safety Bill.

[Lord Stevenson of Balmacara]

My Lords, I opened my comments this morning by referring to the film “Groundhog Day”. I did so in jest and it was not taken seriously but, as we go through the Bill, I am beginning to think that it has more to say to us than I had thought.

Like the right reverend Prelate the Bishop of Bristol, I am quite confused about the Government’s position on this. I am sorry to keep going on to the Minister, who I know is in a good place on many of these issues, but what is happening? She said, in a very strong statement, that there was no reluctance to act; on the other hand, she was quite careful to cover herself and said that that did not mean legislation. Yet, as we have heard, the Prime Minister himself—her boss—has jumped in and has said that legislation will be in place by 31 December, even though we think the date will be 30 April next year. I am not an expert on these matters and I certainly do not want to cause the Committee more confusion, because we want to get through this business today and make sure that the Bill goes on its way. However, it would be helpful if, either now or before the end of this Committee, we had a very clear statement.

Like others, I think this whole area needs people who are keen to see movement on it to get round a table and work out what can be done. If the Government are to go ahead with their own agenda, I am sure the promoters of the Bill, and the noble Baroness, Lady Howe, in particular, will want to get behind that and support it. However, as we know, legislation and legislative time is very difficult to arrange, so, if the Government decided that they had to legislate, it would be completely ridiculous to lose the opportunity available to us here today. We on this side of the House are very willing to support what is necessary to do this—we are not oppositional on this matter—but we are confused.

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Tabled by

[Baroness Howe of Idlicote]

4: Clause 8, page 5, line 5, after “be” insert “—
(a) ”

[Lord McColl of Dulwich (Con)]

My Lords, I am very pleased to speak in support of Amendments 4 to 7 from the noble Baroness, Lady Howe, to which my name is attached. No one can read the very important 2014 ATVOD report and not be convinced about the child safety imperative to provide some kind of regulatory framework for dealing with online pornography, which is projected into this country mainly from websites located abroad.

As the noble Baroness, Lady Howe, will tell us, that report demonstrated that 23 out of the 25 pornographic websites most frequently visited by people in this country are located outside of the UK. To this end, I am of course pleased that this year’s Conservative manifesto committed to introducing age-verification checks on all pornographic sites, and I look forward to hearing from the Minister when further details about this proposal will be published. We had been promised a consultation before the end of the year.

The Government are exceptionally well placed to rise to this challenge, having recently introduced the Gambling (Licensing and Advertising) Act 2014 to regulate online gambling websites based beyond the United Kingdom. In the context of gambling, if someone does not have a licence and they seek to conduct transactions with people in the UK, they operate illegally, so financial transaction providers are happy to refuse to facilitate transactions.

ATVOD, however, reports that the same is not true of pornographic websites that service UK customers from other countries. At the moment, such sites break no law. Indeed, the financial transaction providers have pointed out that, if they refuse to conduct illegal transactions between such sites and people in the UK, they would be the ones likely to be taken to court. This difficulty, however, would not obtain if we introduced a licensing system similar to that pertaining to online gambling and the provider in question did not have a licence. The simple proposal in this Bill is that the providers of online pornography from outside the UK must get a licence, a condition of which would be the provision of robust age verification. I hope that the Government will adopt this Bill as it presents a timely means of fulfilling their manifesto pledge.

The Delegated Powers and Regulatory Reform Committee report took the view that it would be better if the body that heard appeals against decisions not to grant a licence or to revoke an existing licence, were not the same body that awarded the licences. The noble Baroness, Lady Howe, through these amendments, has made provision for the designation of a separate body to hear appeals. The amendments, which the noble Baroness wisely asked the noble and learned Lord, Lord Mackay of Clashfern, to assess, clearly have that effect. I hope the Committee will support them.

[Baroness Howe of Idlicote]

My Lords, I apologise for the delay in finding my papers, particularly to the noble Lord, Lord McColl, who very kindly stepped in.

Amendments 4 to 7 form the second group of amendments that I tabled in response to the Delegated Powers and Regulatory Reform Committee report published on 20 July. They relate to my proposal under Clause 8 to introduce a licensing scheme for foreign pornographic websites in the absence of any robust regulation of these websites.

The Committee may remember that ATVOD, the Authority for Television on Demand, which I am sad to say will cease to exist at the end of the month, published a report in 2014 that found that 23 of the top 25 adult websites visited by UK internet users provide instant, free and unrestricted access to hardcore pornographic videos, some of which would not be available on a British high street.

ATVOD’s report explains that it has encouraged the UK payments industry—credit card companies, Paypal and so forth—not to process transactions involving websites showing hardcore pornography that is presented without robust age verification safety checks. However, it also explains that the transaction providers are unwilling to do so because,

“the absence of clear case law on the issue precludes such an initiative”.

In short, unless the provider of the material is breaking a law, a financial transaction provider could be taken to court for failing to process the transaction. Setting up a licensing scheme, however, as proposed by Clause 8, would set up clear case law. An organisation would have a licence, or it would not. If the organisation did not have a licence, there would be no legal obstacles if a financial transaction provider was minded not to process the transaction—something that Clause 10 crucially mandates.

Clause 8 would provide a regulatory framework to ensure that these websites are not available to children. Clause 9 makes it an offence not to have a licence and Clause 10 provides a means of ensuring that payments to unlicensed websites would cease—a matter I shall come back to when I speak on Amendments 8 to 13.

The committee was concerned that appeals against decisions on not granting a licence or having a licence revoked would be heard by the licensing body. That is a genuine concern, so I tabled Amendments 4 to 7 to ensure that an independent body be able to review any appeals.

Amendments 4 and 5 ensure that the powers under Clause 8(1) allow the Secretary of State to designate both a licensing body and a separate independent appeals body. Amendments 6 and 7 ensure that the Secretary of State is not able to designate a licensing body without knowing that the independent body has adequate arrangements for appeals. As I have already said, I sought the counsel of the noble and learned Lord, Lord Mackay of Clashfern, about whether these amendments deal with the problems highlighted by the committee and he assured me that they do. I beg to move.

[Baroness Thornton (Lab)]

My Lords, it seems to me that the Government, after so much time has elapsed and so many of our young people have been able to access hardcore pornography, need to take action. I congratulate the noble Baroness for yet again trying to persuade the Government to do that. A voluntary approach has not worked. It is time that the Government offered the same protection to children and young people as they do on gambling—that is, robust age verification. In addition, the Government need to have a licensing system. I cannot think why there is none, particularly given that the Prime Minister has said how much he wants to protect our children from accessing hardcore pornography, and recognises the damage it is doing. Will the Minister accept these amendments and give the Government’s support to this Bill? It is time to do so.

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Moved by

[Baroness Howe of Idlicote]

8: Clause 10, page 6, line 22, leave out “designated person” and insert “person or persons associated with the foreign pornographic service”

[Baroness Howe of Idlicote]

My Lords, Amendments 8 to 13 constitute the third group of amendments that I have tabled in response to the Delegated Powers and Regulatory Reform Committee’s report published on 20 July. This set of amendments, like Amendments 4 to 7, relates to my proposal to introduce a licensing scheme for foreign pornographic websites. Clause 10 allows instructions to be given to the financial industry to block payments to any foreign pornographic website that does not have a licence for content accessed in the UK.

In the ATVOD report which I referred to, ATVOD set out that it has been trying to cut all funds from foreign pornographic websites, but the UK payment industry—credit card companies, PayPal et cetera—has reported that,

“the absence of clear case law on the issue precludes such an initiative”.

As I noted during the previous debate, setting up a licensing scheme under Clause 8 would give rise to clear case law: an organisation would have a licence or it would not.

Clause 10 provides another tool to target foreign pornographic websites without a licence. I hope that, under my proposal, this clause would be used rarely because payments would be blocked routinely by financial transaction providers, but it is useful to have another tool to ensure that these websites can be targeted. I based this provision on the precedent of the Treasury’s power to instruct that financial payment should not be made to terrorist groups, as set out in Schedule 7 to the Counter-Terrorism Act 2008. I am sure that noble Lords would not read into that comment that I am suggesting terrorism and provision of hardcore pornography are the same, though both are very damaging; rather, this precedent in law provides a reasonable model for my Bill to follow.

Once again, the committee has given helpful suggestions on improving the drafting and operation of the clause. It rightly pointed out that the definition of “designated person” in Clause 10(3) and 10(5) was problematic and left uncertainty about who the clause is really aimed at. My intention was that the blocking should be of payments to an unlicensed foreign pornographic website. I am again very grateful for the advice of the noble and learned Lord, Lord Mackay of Clashfern, who suggested that I replace the use of “designated person” completely with a reference to the foreign pornographic website, which I have done through Amendments 8 to 10 to Clause 10(3). Amendment 12, which removes the definition in Clause 10(5), is consequential on Amendments 8 to 10.

The committee was also concerned that there is no sanction on a “relevant person” who does not comply with a direction under this clause. I have tabled Amendment 13 to make it clear that a relevant person is one of the group of persons or people listed under Clause 10(2) so that there is no lack of clarity about who should be carrying out the direction. I have also tabled Amendment 11 to set out that anyone who does not comply with a required direction would be liable to pay a fine. This is based on paragraph 20 of Schedule 7 to the Counter-Terrorism Act 2008. Once again, I sought the counsel of the noble and learned Lord, Lord Mackay, on these arrangements to ensure that they properly meet the committee’s concerns relating to these three points, as set out in its report. He assures me that they do.

I should also mention that the committee expressed concerns about the idea that a licensing authority should be able to instruct the financial industry. There is, however, legal precedence in Schedule 7 to the Counter-Terrorism Act 2008 and I hope that, given the clarifications of purpose resulting from these amendments, its concerns will be allayed. I will, however, consult the noble and learned Lord, Lord Mackay, further—I have not done that so far—and may well return to this question with a further amendment on Report if necessary. I am grateful for the comments of the committee to ensure that this clause is as robust as possible, and to the noble and learned Lord for his expert advice. I beg to move.

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[Baroness Shields]

I confirm that we have to react to what has happened in Europe. The European net neutrality directive has set us back, so we are getting ourselves back on a stable footing and enshrining in law the fact that we can protect our filters regime. That is not an intentionally minimalist approach; we have to react to the legal situation that the directive has created.

[Baroness Howe of Idlicote]

I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

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Moved by

[Baroness Howe of Idlicote]

14: In the Title, line 3, leave out from “require” to the first “to” in line 4 and insert “information to be provided about online safety by internet service providers and mobile phone operators;”

[Baroness Howe of Idlicote]

My Lords, I think by now your Lordships will be aware that this is the fifth Online Safety Bill that I have brought to your Lordships’ House. When it was originally submitted to the Public Bill Office, it had the correct Long Title, but, sadly, in the course of preparing the Bill, somehow that new Long Title was exchanged for the previous Long Title—this was lovely back-to-front stuff. The Public Bill Office staff spotted their mistake. They were very apologetic but explained that by that stage it was too late and the only way to correct it was through amendment. Put simply, the Bill currently has the wrong Long Title and Amendments 14 to 16 change it, so that it accurately defines the Bill as it stands.

Amendment 14 would remove the obligation on electronic device manufacturers in the previous version of the Bill, which is not in the current Bill. It puts in its place a description of the obligation placed on internet service providers and mobile phone operators in the Bill to provide information about online safety, as set out in Clause 3. Amendment 16, meanwhile, describes the new proposal to license foreign pornographic websites, as set out in Part 3. I suppose it is fairly amazing that mix-ups like this do not happen more often. I am most grateful to the Public Bill Office for pointing out its error and helping me to correct it.

Given that rather than changing the Bill, these amendments simply restore the correct Long Title to what it should have been all along, I very much hope that these amendments need not detain us. I beg to move.

[Baroness Shields]

My Lords, the Government have noted the noble Baroness’s proposed changes to the Long Title of this Bill, which serve to clarify its content. As I said, there can be no higher priority than keeping children safe online, and to the extent that this measure clarifies the Bill’s intentions, we support it.

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Moved by

[Baroness Howe of Idlicote]

15: In the Title, line 5, leave out “and” and insert “;”