Digital Economy Bill

Baroness Howe of Idlicote Excerpts

2nd reading (Hansard): House of Lords
Tuesday 13th December 2016 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, at this Second Reading of the Digital Economy Bill in your Lordships’ House it is a pleasure to speak today on a subject that I have regularly brought before the House in recent years through a considerable number of my Online Safety Bills. It is remarkable to see that the concerns raised several years ago about the number and nature of the foreign websites that are being accessed by the UK’s young people are finally being addressed. We are beginning to witness the offline protections that parents expect for their children being applied online. So it is rather an historic day. I begin by congratulating the Government, and particularly the noble Baroness, Lady Shields, on Part 3, on which I have spent quite a lot of time with her.

I am also delighted that the BBFC has been appointed as the age verification regulator. Having met, with other noble Lords, a number of leading age verification providers, I am reassured that the available technology is robust and developed on the basis of the principle of privacy by design, which means that complete anonymity can be preserved.

As we have heard, on Report in another place the Minister indicated that the Government would introduce an amendment to the Bill in your Lordships’ House on adult content filters. However, adult content filters should not be confused with the age verification checks proposed in Part 3. The checks relate specifically to pornography, whereas the adult content filters are network-level filters that offer to filter out adult content in the round: violence, drug use, gambling, self-harm, and so on. The adult content filtering regime was promoted very effectively by the previous Prime Minister, David Cameron, who acknowledged that it was being undermined by the EU net neutrality regulations on 28 October 2015, when he stated that,

“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.]

In responding to my Question for Short Debate on adult content filters this year, the Minister explained that the Government have now received new legal advice that suggests that it is not actually necessary to change the law—but, to put the matter beyond doubt, she confirmed that an amendment will be made to the Bill before us today. The noble Baroness, Lady Shields, said:

“We have examined the regulation in detail, and the potential for the network-level parental filters currently offered by providers to conflict with it. We have now received clear legal advice that such network filters that can be turned off are compliant with the regulation. Article 3.1 of the regulation states: ‘End-users shall have the right to access and distribute information and content ... of their choice’. Filters that can be turned off are a matter of consumer choice. Therefore, they are allowed under the regulation”.—[Official Report, 1/12/16; col. 411.]

I am most grateful to the Minister for this clarification—or rather, I was—but I fear that it has generated a number of follow-on questions.

First, when I read the relevant sentence from Article 3.1 in full, it seemed that the reference to “choice” upon which the Government are depending relates to “terminal equipment” rather than to “content”. The full sentence says:

“End-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice”.

In other words, an ISP cannot say that you must use a particular type of router to access the service that it supplies to you. Can the Minister explain why the Government believe that “choice” in Article 3.1 refers to choice about network-level filters? If I am right, and the reference to choice pertains to terminal equipment rather than network-level filters, Article 3.1 would not lift the central obligation in the regulations, described by the European Commission in these terms:

“Every European must be able to have access to the open internet and all content and service providers must be able to provide their services via a high-quality open internet. Under these rules, blocking, throttling and discrimination of internet traffic by Internet Service Providers … is not allowed in the EU, save for three exhaustive exceptions (compliance with legal obligations; integrity of the network; congestion management in exceptional and temporary situations) and users are free to use their favourite apps and services no matter the offer they subscribe to”.

Given that the “integrity of the network” and “congestion management exceptions” do not apply in the case of filtering, this leaves us with “compliance with legal obligation”. In other words, in order to be justified, filtering would need to be the result of a “legal obligation”. However, the way in which the noble Baroness, Lady Shields, described the legislation made it sound as if the proposed amendment would merely clarify that it was legal to provide unavoidable choice or default-on adult content filters if an ISP wished so to do. Specifically, she said:

“We will bring forward an amendment to the Bill in the Lords, to the effect that providers ‘may offer’ filters”.—[Official Report, 1/12/16; col. 411.]

There was no suggestion of an obligation on ISPs to provide this service. I would be grateful if the Minister could set out what the requirements will be on ISPs and, if they are less than mandatory, how they can hope to comply with the net neutrality regulations.

Secondly, I will ask the Minister about the impact of the net neutrality legislation specifically on the use of adult content filters in relation to public wi-fi in the UK. Last year, the Minister set out the Government’s achievements in child protection on the internet. She said:

“The major public wi-fi providers have made family-friendly wi-fi available wherever children are likely to be accessing the internet unsupervised. These are significant achievements”.—[Official Report, 17/7/15; cols. 859-60.]

I strongly agree, but if the criterion for being net neutral is indeed that the user can turn off the filters, I ask myself: who should be able to turn the filters off with respect to public wi-fi for their use in this context to remain legal? I hope the Minister’s legal advice covered that point and that she will be able to reassure the House that neither net neutrality requirements nor the Government’s amendment will place family-friendly wi-fi in jeopardy.

The third question that arises from my consideration of the net neutrality regulations relates to mobile phones. The definition used in the regulation, where an,

“‘internet access service’ means a publicly available electronic communications service that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used”,

suggests that net neutrality applies to ISP filtering and MPO filtering. Will the Government’s amendment consequently apply to mobile phone operators as well as internet service providers to protect filtering on mobiles?

Finally, as so many of these questions rely on legal advice, would the Minister be willing to place a copy of that advice in the Library so that your Lordships can have a full understanding of the expectations that need to be met through the net neutrality requirements and of where there is latitude for child protection measures?

I do not expect that I will be given all the answers tonight, but no doubt there will be other occasions for them during the Bill’s passage through your Lordships’ House. In any event, I very much took forward to the Minister’s response and to discussing the amendments in Committee.