Digital Economy Bill

Baroness Howe of Idlicote Excerpts

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

[Lord Paddick (LD)]

My Lords, I have Amendment 69A in this group. Before I discuss that I wish to address a few remarks to the other amendments in the group. I understand the concerns of the noble Lord, Lord Morrow, about enforcing fines on people who are not within the United Kingdom. However, I do not understand how his Amendment 58 would be any more effective if the payment service provider or the ancillary service provider is also outside the UK. Perhaps when he addresses the Committee shortly, he will also indicate to me, because I am a little confused, the difference between his provision in paragraph (a) of proposed new subsection (2) in his Amendment 65, where enforcement of the age verification regulator’s decision on the payment service provider or ancillary service provider is implemented by way of an injunction, and the proposals suggested for a similar process under Amendment 66.

On Amendment 69A, as I mentioned on an earlier group, there are increasing amounts of adult material available on the internet that is not commercial in any sense. Much of it is taken from commercial websites but there is no reference to which website the material has come from, and therefore no suggestion that it is intended as a lure or as providing a link to a commercial site.

To take up issues just raised by my noble friend Lady Benjamin, increasingly there is pornographic material that might be described as “home videos”, either those produced by what might be described as exhibitionists or others where innocent members of the public, including some celebrities in recent years, are deceived into performing sexual acts to their computer camera not knowing that they are being recorded for subsequent posting on to publicly available websites. There is also the issue that Liberal Democrats have been very strong in trying to tackle: those instances of “revenge porn” where disgruntled exes post compromising videos online. From what I can see, that type of material is not covered by the Bill, as there is no commercial aspect and no ancillary services involved. There is confusion about what “ancillary service providers” means. In his remarks on an earlier group of amendments, the Minister talked about pornographers to whom ancillary service providers provide their services. In the case of self-generated or home-grown obscene material, though, there is no pornographer that the website is providing a service to, at least in one sense. Perhaps the Minister will clarify that.

The noble Baroness, Lady Kidron, spoke about the fact that there are some social platforms, such as Facebook and Instagram, which are very good at taking down inappropriate material: they have strict rules about obscene material posted on their platforms. However, there are particular difficulties here with platforms such as Twitter and Tumblr. Although 99% of the content is innocent and of no harm to children, or anyone else, there are Twitter feeds and Tumblr pages that have adult material on them. Those are not simply links to porn sites, but actual videos on the actual pages or Twitter feeds. While most have a warning on the front page—NSFW, or not suitable for work, or 18+ only—that is usually also the page that has already got pornographic images on it. Even on Twitter, it may not be clear that the media content is pornographic until one has accessed those images. Clearly, there is difficulty in enforcing age verification on those platforms when the overwhelming majority of the material contained on them is not adult material.

What I believe needs to be explored is making a tool available to those who want to use social media for adult material, so that when the Tumblr page or Twitter feed is accessed, the user is diverted to a page that warns what lies behind and provides an option to divert away from the adult material. That alternative page could be a government-specified warning about the impact that pornography can have on young people, advising where support can be given and so on: the equivalent to the warning messages that are now printed on cigarette packets, for example. Alternatively, the Government could by regulation insist that such a tool was made available to ensure such a warning page is placed on accounts, as the noble Baroness, Lady Benjamin, mentioned just now, so that people are alerted that such pages or Twitter feeds have adult content on them. It falls short of requiring age verification or blocking such accounts, which I am sure Twitter and Tumblr would resist, but it would still address an important issue.

In its useful briefings on this aspect of the Bill, the NSPCC says there is a particular problem with children who accidentally stumble across adult material. This would go some way to addressing that issue. The NSPCC says a particular problem is pop-up advertisements from commercial pornography sites, which regrettably this amendment does not address—nor is that addressed by any other part of the Bill. Will the Minister tell the Committee whether there is any move by the Government to address that issue?

It is one thing for the BBFC to block a porn site that does not have age verification; it is quite another to suggest—as the Minister said on an earlier group of amendments—that we block a platform such as Twitter, if it fails to do the same for a handful of feeds that contain adult material. I accept that the amendment as drafted is probably far too wide in the powers it gives to the Secretary of State, but it is important that we do not ignore non-commercial adult material, which in increasingly a problem on the internet.

[Baroness Howe of Idlicote (CB)]

My Lords, my amendment to Clause 17, which noble Lords have already discussed, raised the importance of knowing how the Government plan to enforce the Bill through the appointment of one or more age verification regulators. The amendments tabled by the noble Lord, Lord Morrow, and the noble Baroness, Lady Benjamin, raise similar questions about the mechanics and processes of enforcement and I am very glad to be able to speak in support of Amendments 63, 56, 58 and 65.

On Amendment 63, I agree completely with everything that the noble Baroness, Lady Benjamin, has said. If we are not to have real clarity about the identity of ancillary service providers in the Bill, the idea that we can make do with optional guidance is unsustainable. It must be made mandatory. On Amendment 56, I support the call from the noble Lord, Lord Morrow, to hear a full explanation from the Minister of the mechanisms for enforcing the fining provisions in Clause 22 in other jurisdictions, which were alluded to by the Minister in another place.

In the time available today, however, I would like to focus particularly on Amendments 58 and 65. Any noble Lords who were in your Lordships’ House when we debated the Gambling (Licensing and Advertising) Act 2014 will know that I had a major reservation about the Government’s plans to rely on payment providers to enforce the licensing provisions applying to foreign websites. I think that the noble Lord, Lord Morrow, has demonstrated that my reservations were well founded. In response to written Parliamentary Questions I tabled last year, the Government said that, since the law came into effect in 2014, the Gambling Commission has written to approximately 60 gambling websites reminding them of the law, and payment providers have been asked to block payments 11 times. Given the size of the global online gambling market that can access the UK, that surely seems tiny. If we are supposed to be reassured, I suggest that the Government should think again.

The noble Lord, Lord Morrow, also raised questions about why the Government think that ancillary service providers will act to withdraw their services. I recognise that the Government want to disrupt the business models of pornographic websites, but for some companies, to withdraw their services would be disrupting their own business models. They may be small businesses, not major international organisations such as Visa and Mastercard. In such cases, it would not be in the interests of the business to act. They cannot be expected to do so unless it is made an explicit legal requirement with a clear sanction. My concerns about the absence of any sanction or requirement to act are readily acknowledged by the Government’s own publications, in a manner that I find rather unnerving. In the press release the Government issued when they announced their plans for IP blocking, they said they were,

“also seeking co-operation from other supporting services like servers to crack down on wrongdoers”,

and in the notes to the release said:

“Websites need servers to host them, advertisers to support them, and infrastructure to connect them. With the international and unregulated manner in which the Internet operates we cannot compel supporting services to be denied but the regulator will seek to gain cooperation from the industry”.


They seem to be hoping that, although they have inserted this age verification requirement into statute, it is acceptable to back it up with what is effectively a non-statutory, half-hearted good will enforcement mechanism. Lest anyone doubts this, they should review the Government’s evidence to the Delegated Powers and Regulatory Reform Committee about the delegated powers in the Bill. The Government reported on the guidance to be issued under Clause 22(7) about who will be given a notice about non-compliance of pornographic websites. Importantly, the Government said:

“The recipients of those notices can decide whether or not to take action. Accordingly it is considered that no Parliamentary procedure is necessary”.


It seems that the Government hope that by placing the obligation for age verification in statute, we will congratulate them on fulfilling their election manifesto commitment, without—at least as far as Clause 22 is concerned—any credible commitment to enforcement.

--- Later in debate ---

[The Earl of Erroll]

My Lords, first I thank the noble Lord, Lord Browne, for supporting my amendment in the last group about proportionality and the order in which websites should be tackled. Moving on to this group, I spoke to this set of amendments when we addressed this issue in the group starting with Amendment 54B—so I can abbreviate my speech and be quick. I support the noble Lord, Lord Browne, on the point made in the part of the briefing he was reading about the Obscene Publications Act and the Crown Prosecution Service advice et cetera being out of step with each other and out of step with enough members of the public for it to matter—that is the real trouble. I had thought to mention one or two of the unsavoury practices that you might find that will not be classified under the current ruling in Clause 23, but I think I have been trumped by the newspapers.

Some in the BBFC probably see this as an opportunity to clean up the internet. But it is not going to work; it will have the reverse effect. This whole issue of what is prohibited material needs to be tackled in another Bill, with a different regulator or enforcer, so it does not get confused with the business of protecting children, which is the purpose of this Bill. It will not protect children anyway, as this material ought to be behind the age verification firewall in any event. In fact, the noble Lord, Lord Browne, pointed out why it might not be: you have a possible lacuna in the Bill. If you say that the material is stuff that the BBFC has classified, the really nasty stuff is not included, because it is not able to be classified—so suddenly Clause 23 might not apply to it. He is absolutely right there. This is one of the dangers, which is why they are having to try and draw in the idea of prohibited material. It would be much easier to remove prohibited material altogether.

It has been suggested to me that the easiest thing would be to alter Clause 16, which deals with the definition of pornography. Instead of having this very limited scope, it would be much easier just to have the one simple definition which is already in Clause 16(1)(e)(i), but with the wording slightly expanded to say, “Without prejudice to the application of the Obscene Publications Act 1959, any material produced solely or principally for the purposes of sexual arousal”. You could leave it at that, and then you would protect children from anything unsavoury that we do not want them to see. That is a much simpler solution than getting into this terribly complicated debate about what is prohibited material.

[Baroness Howe of Idlicote]

My Lords, I very much share the concerns expressed by the noble Lord, Lord Browne, about this set of amendments and prohibited material. As they stand, the amendments would have the effect of causing the Bill to place 18 and R18 material behind age verification checks, which Clause 16 limits to 18 and R18 material, while prohibited material would be freely available without any such protection. This would be pretty irresponsible and would show no regard for child protection. Even if the Bill was amended so that prohibited material was only legal online if placed behind age verification checks, we should not forget that the important strategy of targeting the biggest 50 pornography sites will not create a world in which children are free from accessing prohibited material, so that adults can relax and access it without concern. Even if the material was made legal online and given a BBFC classification, this would give a measure of respectability in the context of which it would no doubt become more widely available, and thus the chances of children seeing it would be further exacerbated.

Moreover, the crucial point is that we cannot make prohibited material legal in an online environment at the same time as maintaining the category of prohibited material offline. The former would inevitably result in the latter. Mindful of this, and of the fact that the category of prohibited material is long established, it would be wholly inappropriate for the House or indeed the Government to simply end the category of prohibited material online without a major public consultation. I very much hope that the Minister will completely reject these amendments and stand by what he said on this matter at Second Reading.