Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

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

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the Minister for introducing the Bill and I am grateful to all noble Lords who have contributed to the debate. I sense a good deal of commonality in the views that have been expressed today.

We on our side welcome many of the objectives of the Bill. This is a fast-moving industry, and clearly the current legislation is no longer fit for purpose. Like others in the debate today, though, we are concerned about the Bill’s lack of ambition. It was an opportunity to reach into the future, to design a strong and healthy digital sector that would have secured its reputation as a market leader in the world. Inherent in that model would have been robust systems and checks to address concerns about issues like data privacy, cybersecurity, big government and a lack of digital resilience. The Bill ducks many of those issues, although they are in fact undermining people’s trust in the online world.

The Bill also fails to address the revolution in jobs and skills that was very eloquently flagged up by my noble friend Lord Puttnam and a number of other noble Lords in the debate. Instead, it merely addresses a series of relatively uncontroversial provisions. A number of people have described it as a Christmas tree Bill—in fact I think we have got as far as a forest now—on which a number of disconnected policies have been hung. We agree with that analysis. It leaves us with a strong sense of frustration and the inevitability that we will be back here next year and the year after with further iterations of the Bill, which can best be described as a “patch and mend” approach to the challenges that we are facing. This approach has been compounded by the late changes to the Bill on issues such as age verification and net neutrality, which clearly will need a significant input from this House to perfect. I am sure that as ever we will rise to this challenge and the Bill will leave this House in better shape than when it arrived.

I turn to some of the specific policies in the Bill. First, a number of noble Lords raised concerns about the broadband universal service obligation. This is not surprising as it is an issue that has caused massive frustration over the last few years, peppered as it has been with failed government promises and missed targets. This is our opportunity to get it right. As many noble Lords have said, though, the Government’s objectives in the Bill are simply not ambitious enough, and I am sorry to say that I disagree with my noble friend Lord Young on this matter.

The proposal for 10 megabits per second is less than half what is needed to achieve the updated definition of superfast broadband. It will leave some households in the slow lane and others completely out of range of the new offer. That is why we will be tabling more ambitious amendments for a future-proofed state-of-the-art broadband provision, as well as independent evaluation of the speed of delivery.

We agree with the noble Lord, Lord Baker, and others that we should be embracing the future technology that mobile can deliver, particularly in reaching the most isolated communities. We believe that we should be setting similar ambitious targets for mobile, which are so far missing in the Bill. My noble friend Lord Gordon made a compelling case for the sharing of mobile masts and the need to reconsider roaming, particularly in those dead zones where no provision is currently available.

Secondly, we welcome the Government’s initial steps to control children’s access to online pornography. We have, of course, rehearsed those arguments many times in this House. I pay tribute, as others have done, to the noble Baroness, Lady Howe, for her tenacity in continuing to pursue this issue. However, we are concerned that many of the proposals have been introduced late in the proceedings in the other House and we have not had the chance to give them sufficient scrutiny. We recognise that no system of parental filters or age verification can provide the perfect answer to this huge social challenge. However, during the course of the Bill’s proceedings, we hope to work with the Minister and the industry to produce a robust system that, on the one hand, protects children and, on the other, addresses the legitimate concerns of adults regarding privacy and the right to access pornography legitimately. In particular, we want to be assured that websites which flout the system cannot find simple tricks to circumvent the system that we are establishing; that age-verification providers are properly regulated; that on-demand material is subject to the same tests as those of other online services; and that the new role allocated to the British Board of Film Classification is properly overseen by an independent body.

We are also aware that the relationship between the new EU rules on net neutrality and the systems in place for parental filters needs to be resolved by the new amendments promised by the Minister in the other place. We look forward to scrutinising those amendments when they appear to make sure that they are fit for purpose.

There has been a widespread view around the Chamber today that we will not sort this problem by legislation alone. We have consistently joined with others in the House to press the case for compulsory sex and relationship education in schools, and we will continue to press this case during the course of the Bill’s proceedings. We hope that the Government, belatedly, will come to see the sense of those arguments.

Thirdly, we want to address the real concerns about digital government and data sharing. We can all think of areas of government where improved data sharing makes perfect sense, but we need to make sure that it does not become the default option. Proper controls need to be put in place to safeguard access to personal data and ensure that information is used only for the purpose originally requested. We will be tabling amendments to make sure that proper independent controls are in place to sign off and oversee the use of data.

We are also proposing the establishment of a big data commission to review the collection and use of data by government and by commercial bodies. The noble Baroness, Lady Kidron, quite rightly raised particular concerns about private bodies increasingly being involved in delivering public services. There need to be controls over how they use publicly accessed data. We will want to see a public register where all disclosures of data will be logged so that everybody has the right to see what is going on. We would also like a requirement for breaches of data security to be reported as a matter of course.

We would like the Bill to include measures to tackle online abuse and trolling, which a number of noble Lords have mentioned. In particular, we want to look further at how to control abuse on social media which, as we know, is an increasing scourge on our society.

Fourthly, we want to revisit the unwarranted decision by the Government to transfer responsibility to the BBC for setting the over-75s concessionary TV licence. We are not ready to let this issue lie, as some noble Lords have suggested. Apart from the fact that it is a clear breach of the Conservative manifesto, it sets a worrying precedent by passing part of our welfare system to an organisation with no direct accountability to the electorate.

As part of the scrutiny of the BBC’s new royal charter, we will also want to check that the new powers of Ofcom to regulate the BBC are proportionate. In scrutinising these clauses, we also want to ensure that the predominance of public service broadcasters on TV listings is protected and extended to online on-demand services.

Several noble Lords mentioned the importance of providing audio-visual services for those with disability across all on-demand providers. We very much welcome the Minister’s commitment today and look forward to receiving details in due course.

Like others, we welcome the proposed repeal of Section 73, with all the benefits that it will bring to PSBs. We would like to follow it up by ensuring that any profits that occur from it are reinvested in programme development. We are also concerned about the concept of a transition, and we would like to explore exactly what is intended by it, as we feel that speed is of the essence in introducing the changes.

In the spirit of equalising offline and online transactions, we also welcome the Minister’s commitment today to extend public lending rights to e-book lending; again, we would like to explore its reach. On the basis of parity, we also look forward to exploring whether VAT should continue to be paid on downloaded books.

Finally, our colleagues in the Commons played a significant role in the cross-party initiative to tackle automated ticket touting, or bots. We will be tabling an amendment to end the use of digital ticket purchasing systems which buy event tickets in large numbers through automated systems, thereby blocking access for real fans, whose only choice then is to buy them on the secondary market at inflated prices. As I understand it, the Minister in the Commons raised concerns about the wording of the amendment tabled there but expressed some sympathy for the cause. I very much hope that the noble Lord will agree to work with us on this issue to find the right words to end this rip-off in ticket sales.

On that issue, and on many others, we look forward to working with the noble Lord as we follow these changes through the course of the Bill, and we look forward to his response.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

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

Moved by

[Baroness Jones of Whitchurch]

54B: Clause 15, page 18, line 25, at end insert—
“( ) the overarching duty of care of internet service providers and ancillary service providers and their responsibility to ensure that all reasonable steps are taken to ensure the safety of a child or young person involved in any activity or interaction for which that service provider is responsible.”

[Baroness Jones of Whitchurch (Lab)]

My Lords, we all share a common purpose in wanting the new age verification process in Part 3 to be robust, trusted and effective. It is of course vital that we put in place powers to protect children from viewing inappropriate pornographic material, and we have rehearsed the arguments as to why it is important many times before in the House. We therefore believe that there should be an overriding duty of care on internet service providers and ancillary service providers to keep children and young people safe when using these sites.

The details of how this duty should be applied need to be subject to further consultation, which is what our Amendment 54B seeks to achieve. However, more substantially, we are concerned about the scale and the scope of the regulatory functions in the Bill, which to our mind have not been thought through and were not given sufficient scrutiny in the Commons. This was not helped by the fact that substantial new clauses were added to the Bill late on in the process which considerably extend the powers of the age verification regulator. The result is that Part 3 feels very much like a work in progress, with many of the usual checks and balances unresolved.

This was identified by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee which, as we know, raised a number of specific concerns that we will address in later amendments. By way of example, the Constitution Committee stated:

“We question whether the House can effectively scrutinise the Bill when its scrutiny is impeded by the absence from the face of the Bill of any detail about the operation of the proposed age-verification regime”.


We agree with that point and we have concerns about the whole regulatory structure as it is currently set out in Part 3. That is what Amendment 54D seeks to address.

The amendment in the name of the noble Baroness, Lady Howe, specifies that the regulator should be the British Board of Film Classification, and it has been widely assumed that it would take on a similar classification role for online to that which it already carries out for offline. But the new, expanded role set out in Part 3 has much more extensive powers to follow up those who fail to apply age verification filters with fines and ultimately with the blocking of their sites by internet service providers. We believe that these functions are separate and should be carried out by a separate regulator. Indeed, when we recently met the Minister, Matt Hancock, he said that Ofcom was in a better position than the BBFC to handle the financial penalties proposed.

In addition, there is a need to specify who will carry out appeals and to ensure that this is a separate, independent organisation and not one that is appointed by the regulator. This point was raised by the Delegated Powers Committee and again we have tabled separate amendments on it that will come up later. Finally, we would argue that there needs to be effective oversight and supervision of the new regime to ensure proper governance and value for money. Arguably, Ofcom rather than the Secretary of State should have a role in holding both the classification and the enforcement agencies to account, as well as reporting to Parliament from time to time on progress. But of course Ofcom cannot do everything, which is an additional reason why we believe that we need to take time to allocate the different layers of responsibilities correctly.

No doubt other noble Lords, like ourselves, have received over the past few weeks representations from many bodies providing internet service provision, payment and ancillary services. They have raised concerns about the new powers in the Bill and how they will work in practice. Indeed, one of the ISPs went as far as to say that it was so concerned that it was going to redraft the whole of Part 3—so there is a major concern about how the powers are to be allocated. This is why we believe that it is important to get this right by taking more time to consult on the role and functions of the regulator or regulators and to bring a clearer set of proposals back to both Houses. Amendment 54D would achieve this objective.

We believe that we need to take extra time to get this right. It should not be left to the Secretary of State and the eventual system for protecting children, which is something we all agree with, will be much more robust as a result. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, with the permission of the Committee, it may be helpful if I say a few words before other noble Lords make their contributions in order to help the rest of our debate on this part of the Bill and to put on record the Government’s position on a key issue that we will be debating today.

The BBFC is going to be given powers in the Bill to give notice to payment service providers and ancillary service providers under Clause 22 and to ISPs under Clause 23 of websites that have inadequate age verification as well as prohibited material. Many noble Lords have raised concerns with me about the scope of what amounts to “prohibited material”, so let me put on record what I have been telling those noble Lords in the many meetings we have had. The Government disagree that “prohibited material” should be excluded from the regulator’s powers. We must not unintentionally legitimise all types of pornographic content as long as age verification controls are in place. Extreme pornography can involve dangerous content. The current definition of “prohibited material” in the Bill would bring parity with the offline world—material that would not be classified by the BBFC, including material that is in breach of criminal law.

The Government’s intention is to protect children from harmful content. We have listened to the arguments that in doing so, the drafting of the Bill may have unintentionally extended the powers of the regulator too far. We all share a common goal of keeping children safe and the Government will ensure that, in achieving this aim, we have a proportionate and fair impact on others who enjoy the freedoms and equalities that are important to everyone. So I can commit that we will give this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I will be very happy to discuss this with interested Peers before Report.

--- Later in debate ---

On the basis of those explanations, I would be grateful if the noble Baroness felt able to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I thank the Minister for his opening statement and for his comments now, but I do not really feel that he addressed our concerns about the overarching architecture of the regulatory structure: where the power should lie, the detail of which regulator has which functions and so on, and whether there is a need for someone to oversee the whole regime.

I also thank the Minister for his offer of further discussions about this, but as a number of noble Lords have said, it is rather frustrating that the information and debate that we ought to be having here in Committee is being shifted backwards so that we will have it in correspondence or perhaps offline before Report. Normally, we would expect the government proposals to be in front of us here, so that we can debate them in detail. As the noble Baroness, Lady Byford, said, once again we find that the debates that we should be having in Committee are happening on Report, which makes it very frustrating for everybody involved. That also applies to the reports from the Delegated Powers Committee and the Constitution Committee. With respect, the Government have had those documents for several weeks now, and I would have thought it would have been possible to have given us a response as to how the Government intend to react to them before today’s debate. I find this whole process for considering Part 3 very frustrating. Notwithstanding that, I know that the Minister means well and I am sure we will all want to take up his offer of further discussions, if that is possible.

The noble Baroness, Lady Howe, made a very good point about who the other regulator will be, and I was not sure that the Minister really answered it. Again, if we are going to get down to putting in the Bill that the BBFC will have part of that function, it is right that we should also say who will have the other part of it; otherwise, the Bill is not going to make sense. So I have an ongoing sense of frustration. Some of the issues that a number of noble Lords have raised will spill into some of the discussions that we will have on other amendments and will no doubt come up several times, regrettably, although maybe that is just because of the way that we have structured some of the amendments.

I agree absolutely with the noble Baroness, Lady Kidron, that we need a much clearer definition of ancillary service providers. To the outside world, that is a non-phrase really, but it means either so much or so little, and we just need some clearer definition of what it means in terms of the responsibilities of social media providers. It may well be, as I think the noble Lord was suggesting, that some of them have different responsibilities from others, but we need that debate. It is a really important debate, since, as the noble Baroness was saying, children are accessing this material and there do not seem to be any real proposals in front of us for how we are going to get a grip on that. That is perhaps something that we can return to later as we debate other provisions in Part 3.

Finally, I think the Minister strayed into the whole issue of what is prohibited material. Again, we have amendments on that later and will return to it when those are discussed, but I thought that we had made more progress on that than the Minister is now suggesting. I know that a number of noble Lords had a meeting with Matt Hancock, the Minister, a couple of weeks ago, and I thought that we were edging towards a new form of words, but it does not seem that this is before us from what the Minister has said. So again, we have a level of frustration about this.

[Lord Ashton of Hyde]

Let me confirm that I hope we are edging towards some agreement; it is just that, as the noble Baroness will be aware, there are times when one can announce these things and there are times when one cannot. I agree with her that it is somewhat frustrating—in the same way that it is frustrating when, though we have had the Explanatory Memorandum since the Summer Recess, amendments appear at the last minute. It is a frustrating process.

[Baroness Jones of Whitchurch]

Well, this is because the discussion has gone on over the summer, with the Government and with other people. We have been seeking clarification, which we have not had, which is why we finally put down amendments. Anyway, this debate is going to continue, I think, through the course of Part 3. In the meantime, I beg leave to withdraw the amendment.

Amendment 54B withdrawn.

Moved by

[Baroness Jones of Whitchurch]

54C: Clause 15, page 18, line 25, at end insert—
“( ) The Secretary of State shall by regulations made by statutory instrument lay guidance for the purposes of subsection (3) before both Houses of Parliament.”

[Baroness Jones of Whitchurch]

My Lords, this returns to some of the more detailed proposals of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. As I have already said, when we first looked at Part 3, we were immediately concerned about the lack of oversight and accountability of the powers and functions of the age verification regulator or regulators. So we were not surprised, when the reports of the Constitution Committee and the Delegated Powers and Regulatory Reform Committee were published, that they very much echo our concerns. For example, the Constitution Committee said:

“We are concerned that the extent to which the Bill leaves the details of the age-verification regime to guidance and guidelines to be published by the as yet-to-be-designated regulator adversely affects the ability of the House effectively to scrutinise this legislation. … The House may wish to consider whether it would be appropriate for a greater degree of detail to be included on the face of the bill”.


This is what we are debating and grappling with today.

The Delegated Powers Committee raised a number of more detailed criticisms. For example, it was concerned that the Bill leaves it to the Secretary of State to determine who the regulator or regulators should be, and said that it is inappropriate for the regulator to then decide what the appeals mechanism should be. It flagged up the need for this to be an independent body. It was deeply concerned that the regulator would be left to draw up its own guidelines on the circumstances in which internet sites would be deemed to be publishing pornographic materials. It went on to say:

“We consider it objectionable as a matter of principle that a regulator, who is to be clothed with extensive powers to impose fines and take other enforcement action, should itself be able to specify how key concepts used in clause 15(1) are to be interpreted”.


It also noted that further broad discretion to the regulator was being granted to produce guidelines on the application of those financial penalties. In all these areas it therefore recommended that the regulator’s guidelines should be laid before Parliament and subject to the affirmative process. In the absence of a positive government response to these recommendations, we have been helpful by setting out a number of amendments that aim to achieve that desired outcome.

So Amendment 54C would require the guidance on the types of arrangements for making pornographic material available, and circumstances in which it is judged to be commercial, to be laid as SIs before both Houses. Amendment 55A specifies that the Secretary of State should make regulations for a clear appeals procedure which would come before both Houses, and makes it clear that the appeals regime should be independent. We are also supporting Amendments 69 and 229B, in the name of the noble Lord, Lord Paddick, which aim to achieve a similar outcome.

Amendment 56A would require an SI on the arrangements for issuing enforcement notices to those who contravene the age verification regime. Amendment 62A would require the guidelines on the blocking of access to sites via payment providers and ancillary service providers to come before both Houses in the form of SIs. All these proposals are drawn from the recommendations of the Delegated Powers Committee.

I have also added my name to Amendment 66, in the name of the noble Lord, Lord Paddick. We believe that the power to block sites, while important as an ultimate deterrent, should be imposed proportionately and with careful scrutiny. The current wording of Clause 23 allows for the regulator to give a notice to an internet service provider that it should block non-compliant sites so that the offending material cannot be accessed. The clause also specifies that the regulator should inform the Secretary of State of its intention to give such a notice. We do not believe that that is the right mechanism, and it does not provide enough independent scrutiny of the decision. This is why the amendment requires a blocking injunction to be initiated by the Secretary of State in conjunction with the regulator.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, this has been an important and interesting debate—I can tell that by the number of Peers who are arriving to hear my response. I also appreciate very much the offer of help given by the noble Baroness, Lady Jones. I have listened carefully to the arguments and again I acknowledge that we are not able to give our answer on the DPRRC’s report, but as the noble Lord, Lord Clement-Jones, said, it is very important to get it right and we will produce the response soon.

The age verification regime was designed to provide a proportionate and practical response to the very real problem of the easy availability of internet pornography to children, and we need to bear that in mind when considering this issue. Amendments 55A, 69 and 229B are concerned with appeals. The BBFC has a strong track record in running the system of classification, including a two-stage appeals process which includes an appeal to an independent authority. We understand the desire to specify in detail in the Bill what an appeals process must look like for what is undoubtedly a serious matter, but we are satisfied that the BBFC is in a strong position to develop and administer a fit-for-purpose appeals process. Clause 17 specifies that the Secretary of State may not designate the regulator until satisfied that arrangements will be maintained by the regulator for appeals by the key persons involved in the regulatory framework, as set out in Clause 17(4)(a) to (e). As the noble Baroness, Lady Jones, said, the DPRRC has made some well-considered recommendations on appeals that we are considering and will be responding to before Report.

Amendments 54C, 56A and 62A provide that the Secretary of State must, in regulations made by statutory instrument, lay guidelines before each House of Parliament on different areas of the regulatory framework. The internet, as we all know, is a fast-changing area and the legislation has been drafted with the necessary flexibility to create a proportionate regulatory framework. For example, it will be for the regulator to publish guidance about ancillary service providers. I have also noted the recommendation of the DPRRC on these matters and I can assure noble Lords that we are considering it carefully before responding.

On the issue of ISP blocking, government Amendment 67 ensures that the regulator must not direct an ISP to block a non-compliant site should that be detrimental to national security, the prevention or detection of serious crime, or an offence listed in Schedule 3 to the Sexual Offences Act 2003. We believe that it is right that the actions of the regulator in seeking to protect children from pornographic content should not have unintended consequences for the work of law enforcement and the security and intelligence agencies in combating serious crime and protecting national security. I am confident that the industry will take a responsible position and therefore envisage that the regulator will need to use this power only sparingly. However, where it does need to be used, I would suggest that the regulator would never wish to be in a position where it might have an unintended impact on efforts to ensure public safety.

The provision provides an important safeguard for circumstances in which a site might form part of an investigation. The Government and the regulator will agree arrangements for how the deconfliction process will take place. This is an important step towards ensuring that the regulatory regime functions in a successful way and giving the regulator a framework in which to succeed.

Amendment 66 tabled in the name of the noble Lord, Lord Paddick, and other noble Lords brings forward blocking by court order. We recognise that providing the regulator with the power to direct internet service providers to block content is a serious step, but the conflicting views of noble Lords in the debate show that this is a difficult area to get right. We have always been clear that we want to build an effective regime. This is fundamentally different content to regimes where court orders are used. As I have said, and the noble Baroness, Lady Jones, agreed, we envisage that the regulator will need to use this power only sparingly. However, the cost and process of the court order procedure would place an undue burden on the system We know that the court order process for copyright, for example, is not without issues, and unlike copyright where the individual is seeking a court order, in this case there is a regulator with expertise in classification.

It is important to note that our regime is about encouraging compliance by the industry. Giving the regulator the power to direct internet service providers is the proportionate and right approach to ensuring that children are not inadvertently exposed to harmful pornographic material. With that explanation, I hope that the noble Baroness will withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I thank all noble Lords who have contributed to this discussion. I say to the noble Lord, Lord Morrow, that we are all trying to balance child protection and civil liberties; that is the issue we are trying to resolve. Indeed, there is no black-and-white answer and it may well be that we will need to have further discussions. But I remind noble Lords that the Delegated Powers Committee said that it considered it objectionable for an unspecified regulator—people have talked about it being the BBFC but I do not think it necessarily will be—to have so much power to impose fines and take other enforcement action. We need to look again at how we can ensure some other oversight of those powers. Amendment 66 would provide a legal structure for all that, and we still feel it would provide the certainty that does not exist under Clause 23. Further, it would provide a degree of independent oversight, which Clause 23 as it stands does not.

I say again that the ISPs caught in the middle of all of this are very concerned about the way Clause 23 is worded. They feel that they will be caught in the middle of legal battles, and it may well be that whatever we decide, these matters will end up in court anyway. Given that, the more legal clarity and specification we can put in the Bill, the better, because that will help everyone to understand their rights. Some noble Lords have also queried the appeals process, but it is important to spell out not only what that process should be, but that it should be independent. Again, our amendments seek to achieve that.

I know that the noble Lord has said that he wants to come back to this when the more detailed response to the Delegated Powers Committee’s report has been produced. I hope that our amendments have been helpful and that they may provide a working copy from which he can put his ideas together. In the meantime, I beg leave to withdraw the amendment.

Amendment 54C withdrawn.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

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

[Lord Browne of Belmont (DUP)]

My Lords, I am pleased to be able to support Part 3 of the Bill, and Amendments 58 and 65, in their objective of increasing child safety. However, I am concerned that the Government’s proposal in Clause 22 currently leaves many questions unanswered. I am raising these points in the context of the Government stating in the impact assessment for the Bill, published last May, that the regulatory system to be set up under Clause 22 would merely,

“nudge porn providers to comply and put age verification in place”.

That is not consistent with the much bolder manifesto commitment simply to,

“stop children’s exposure to harmful sexualised content online by requiring age verification for access to all sites containing pornographic material”.

Since then the Government have set out a robust position on IP blocking, which leaves websites little room for doubt as to what might happen if they do not comply with Part 3. The enforcement action is clear: the age verification regulator can issue a notice and internet service providers have a duty to respond. In this regard, and alluding back to the previous debate, I think it is vital that Clause 23 should remain as it is—unamended.

However, there has been no upgrading of Clause 22 in parallel with the introduction of Clause 23, so we are left with the notion of “nudging” websites—which gives me little reassurance that this is a robust approach to enforcement. Under Clause 22(1) the age verification regulator may give a notice to a payment provider or an ancillary service provider, but it is not clear when or if the regulator would inform the service provider that such a contravention was happening. Would it be after a fine was not paid or after a letter had been sent—and, if so, how long would a website have to respond before a notice would be given? I hope that the Minister will set out the Government’s intentions.

I support Amendment 58, tabled in the names of the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe. It would require the regulator to issue a notice under Clause 22(1). The noble Baroness deserves much credit for her persistence in bringing this issue before your Lordships’ House over many years. My bigger concern is that, having set out clearly that internet service providers must act in response to a notice from the regulator, there is no transparent statutory expectation on payment providers or ancillary service providers. How do the Government expect enforcement to take place without this power? Others have set out their case on this point in detail and I will not take up the time of the Committee by repeating it, but I am left feeling concerned that there is no power to require service providers to take any action after receiving a notice from the regulator. Furthermore, such a lack of teeth undermines the Government’s manifesto commitment to prevent children accessing all pornographic websites.

I fully support Amendment 65 in the group, which would make it a duty for payment providers and ancillary service providers to act by removing their services from contravening websites, and makes that duty enforceable. I hope that the Government will agree.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I rise to support in particular the inclusion of Amendment 65 on the requirement for payment services providers to cease providing a service to those who flout the age verification rules, and I am pleased to say that it looks like we are building slightly more of a consensus on that than we did on the previous group of amendments. It seems to us that this is the most powerful measure that can be taken against rogue pornographic sites. If we can cut off their source of income, the likelihood of a positive response is almost inevitable.

The very nature of commercial pornography is based on the vast sums of money that can be made from it. Indeed, when we debated Part 3 at Second Reading, several noble Lords made the point that legitimate pornography sites would welcome the age verification process as they do not make any money from children casually visiting their sites; they want the more serious players to be involved because obviously they are the ones who are going to pay the money, so there is a kind of internal logic to what is being proposed. For these sites, the overriding concern is to harvest the profits, and any threat to that is likely to bring about an immediate response.

However, I also accept the point that we have to get the enforcement right, and I listened carefully to the noble Baroness, Lady Howe, about the experience with regard to the Gambling Bill, some of which I did not know. If there is a problem, let us talk it through and work it out because somewhere in the mix is the answer to our problems.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

57: Clause 22, page 23, line 44, leave out paragraph (b)

[Baroness Jones of Whitchurch]

My Lords, in moving Amendment 57, I shall speak also to Amendments 59, 60, 61 and 64. These amendments address the issue set out by the Minister this morning, but I make no apology for revisiting this and setting out our position so that it is on the record, although I take the point that he may not be able to answer all the points this afternoon.

Nevertheless, I should like us to have that debate. These amendments would remove the reference in Clause 22 to the regulator defining and imposing new controls on what is prohibited material on the internet. Noble Lords will know that there has been increasing concern about the implications of this wording. It is felt that it would give the regulator extended powers of censorship beyond that originally envisaged in the Bill. When our colleagues in the Commons originally raised concerns about press reports that the Bill could be used in practice to extend internet censorship for adults, the Minister, Matt Hancock, was quite clear. He said:

“I have also seen those reports. I think that they misread the Bill. That is neither our intention, nor our understanding of the working of the new clauses”.—[Official Report, Commons, 28/11/16; col. 1284.]


However, others have since put a different interpretation on the scope of the wording, so there has been ongoing concern about what can best be described as mission creep.

The purpose of Part 3 of the Bill is to provide protection for children from accessing online pornography. We all agree with this intention. However, as the wording stands, it potentially sets new limits on consenting adults accessing pornography that is not harmful to themselves or others. This is material that would not receive a film classification certificate, but neither would it be subject to prosecution. It is not helped by the fact that, by all accounts, the Crown Prosecution Service’s guidelines on this issue are out of date. There is a resulting grey area of pornography that by practice, but not by statute, is not prosecuted. We strongly contend that this is not the place to resolve these wider debates on adult consensual pornography. It is an issue for public debate and for consultation at another time.

In more recent days, Matt Hancock has met with various groups of us and has, I understand, accepted that the wording in the Bill is not as it was intended. He has proposed, albeit informally, that instead a definition of prohibited material should be based on that of extreme pornography, as defined in the Criminal Justice and Immigration Act 2008. We agree that this is a helpful proposal that could well resolve the debate.

We regret, therefore, that the Government were not able to produce an amendment along these lines in time for today’s Committee, which is really where some of these important principles should be resolved, before we get into the more formal, technical detail on Report. These amendments flag up our concerns with the current wording to urge the Government to come forward with detailed proposals before Report and, we hope, to build a consensus to go forward on this issue. Child safety is the issue here, not adult consensual pornography. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, briefly, I strongly support what the noble Baroness, Lady Jones, said. That is why these Benches support the amendments. I took quite a look of comfort from what the Minister said early on in today’s proceedings. As the noble Baroness, Lady Jones, said, there are considerable concerns about the width of “prohibited material” and the very existence of that particular set of conditions inserted at a fairly late stage in the Commons.

Of course, we have talked about the site-blocking provisions but the prohibited material aspects really confuse the issue as they deal with access by adults. It was very useful having the meeting with the Minister and his colleague, Matt Hancock, to talk about these issues. Having discussed the matter, we felt that the proposed new definition of prohibited material, limited to the 2008 Act, was acceptable as that is very tightly defined. Again, I entirely agree with the noble Baroness that it was very disappointing that immediately after that meeting the wording as in this amendment was not made available or put down for the Committee. That would have been enormously helpful in settling people’s concerns about the width of the definition of prohibited material, which goes well beyond the harm test used by the BBFC under the Video Recordings Act.

That is really the essence of it—tying it back. I hope the Minister will shortly explain this in greater detail than he did at the beginning of this session to allay our many fears about something fairly extraneous being introduced into the Bill. I stood corrected earlier by the noble Lord, Lord Maxton, about the exact purpose of Part 3, which is to prevent access by children to online pornography. We must be very clear that that is what we are about, rather than trying to censor the internet on a broader basis.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, this is an important debate, dealing not just with age verification but whether prohibited material should be included. I do not want to stand here and defend opposition amendments or put words into the mouth of the noble Baroness, Lady Jones, who can correct me if I am wrong, but I do not think that the object of the exercise was to completely get rid of prohibited material; it was to raise the extent to which the definitions may have exceeded what was originally intended. I say to the noble Lord, Lord Browne, and others that the point is that the current definition of prohibited material in the Bill allows the BBFC to consider content based on its existing hard-copy guidelines. We recognise that some think this goes too far and therefore we are continuing to listen to views on that. On the other hand, asking the regulator to consider only classifiable pornographic content creates the real risk that more extreme content will proliferate further.

I realise that it would have been easier if we had had a definition in front of us today. I know that we have discussed this with various noble Lords. The noble Lord, Lord Clement-Jones, is obviously teasing me because he knows that it takes time. As a lawyer, he will know that these issues are complex, and we have to make sure that all parts of government are happy with the wording. I shall repeat, for the benefit of the noble Baroness, Lady Benjamin, and other noble Lords, the important bits of what I said this morning. It is our intention to protect children from harmful content. Therefore, we have listened to the arguments that, in so doing, the drafting of the Bill may have unintentionally extended the powers of the regulator too far.

I committed this morning—and do so again—to giving this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I repeat my offer to discuss this with interested Peers. I think that the noble Lord, Lord Browne, and the noble Baroness, Lady Howe, can be temporarily satisfied that we do not intend to get rid of prohibited material entirely. There is not much more to say at the moment, but we will come back to this on Report. In the meantime, I would be grateful if the noble Baroness would withdraw her amendment.

[Baroness Jones of Whitchurch]

I am grateful to the Minister. He is absolutely right and I am sorry if I did not make that clear. When we were proposing to take those words out, we were rather hoping that somebody would come up with a definition that would replace them—it was not just an attempt to take them out finally and for ever. It rather highlights the fact that we do not have another form of words to be working with today.

I do not envy the Minister in trying to balance all these different desires to get the wording right. We agree with the principle that offline and online should be dealt with on the same basis, but the problem is that in practice, what happens with offline material is not what is necessarily captured in the current legislation. That is the difficulty we are trying to grapple with. Our aim is to maintain the status quo. We do not want to ruffle any feathers or change anything. We want to make sure that what people can access online has the same checks and balances as offline has at the moment. The problem is the lack of a current substantial legal definition. As I said, there is a grey area, so we have to work our way through it. That is the difficulty.

As I said, I do not think that we should start redefining anything massively without a public consultation. People have talked about that and I agree. We are simply trying to protect the status quo so that adults who currently look at material can carry on looking at it—and this has nothing to do with child protection and children’s access to pornography. We need to understand what we are aiming for, but it is a question of getting the wording right. I am sure that the noble Lord will come up with something with which we can all agree in the medium term. In the meantime, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

--- Later in debate ---

[Baroness Benjamin]

My Lords, I support the amendment and congratulate the noble Earl on all the hard work he has done. Six months ago I told him to get on with it, and he certainly has. We had a presentation, and I was so impressed by the progress that has been made in this area. Congratulations, and I thank him very much for all that he and his colleagues are doing to make sure that our children are safe, and that people feel that their data are protected if they go online for age verification.

[Baroness Jones of Whitchurch]

I support the comments that have been made by a number of noble Lords. I think we all understand the need for particular care to protect the identity of those who are over 18 and legitimately want to access pornographic sites. Apart from anything else, as has been said, we must protect those individuals from blackmail threats.

In this respect, the age verification process has to be more rigorous in providing anonymity than other regulations where proof of credit card details may have sufficed, but may also have made identification of the individual all too easy. The noble Baroness, Lady Howe, is not in her place, but I understand that the site that does the gambling checks does it on the basis of credit card details. Clearly, that would not be appropriate in the context of the issues we are grappling with here.

Thankfully, as we have heard, the technology is catching up with the need and there are now new age verification provider sites that can carry out the age checks. I am grateful to the noble Earl, Lord Erroll, for explaining in some detail how that works; it is all very reassuring. I do not think I have anything else to add: we have a consensus that some such measure needs to be built into the legislation, and I hope the Minister will agree with us.

[Lord Ashton of Hyde]

My Lords, I am grateful to all noble Lords again, particularly the noble Earl, Lord Erroll, for the teach-in.

Amendment 68 calls for the regulator to approve age verification providers and to publish a code of practice with which those providers must comply. This was similar or identical to the amendment that was rejected in the other place in Committee and on Report. I am afraid that the Government do not consider this clause necessary. However, I can assure noble Lords that we approach this issue with the utmost seriousness.

Clause 15(3) already requires the regulator to publish guidance about the types of arrangements it will treat as being in compliance. As the noble Earl explained, the technology is with us and the providers of age verification controls will be subject to data protection laws. The BBFC is already in discussion with the Information Commissioner’s Office to ensure that best practice is observed. It has indicated that it will give the highest priority to ensuring that the guidance it issues reflects data protection standards. The Government and the BBFC are also in discussion with the Information Commissioner’s Office on privacy and data requirements to ensure that the appropriate guidance is issued, as they are experts in this field.

The Delegated Powers and Regulatory Reform Committee has additionally made a recommendation on the approach to the types of arrangements for making pornographic material available that the regulator will treat as complying with Clause 15(1). We are considering whether we can address those concerns and, as I said, will respond as soon as possible.

As the noble Earl explained, innovative age verification solutions are coming to market, and we want to ensure that the regulator is enabled to make a determination as to the sufficiency of different and new controls. As noble Lords know, there are existing privacy and data security protections provided by the Data Protection Act 1998, administered by the Information Commissioner’s Office. The Act established a framework for the protection of personal data, balancing the privacy rights of individuals with the legitimate needs of organisations to make use of such data. It ensures respect for individuals’ rights to privacy and keeps their personal information secure from abuse. The Act ensures that data are handled safely and securely. It is right therefore that we do not seek here to duplicate this legislative and regulatory framework. However, we agree that we must ensure that it is built into the age verification process in a meaningful way and, as I have said, we will provide a response to the DPRRC recommendation on this matter. In the meantime, I hope the noble Lord will withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

70: After Clause 26, insert the following new Clause—
“Review of online abuse
(1) The Secretary of State must carry out a review of online abuse.(2) In conducting the review, the Secretary of State must consult—(a) specialists in child protection;(b) people and organisations who campaign for child safety on the internet; and(c) any other persons and organisations the Secretary of State considers appropriate.(3) The Secretary of State must consider measures to prevent online abuse and harassment.(4) The Secretary of State must lay a report of the review before each House of Parliament within six months of the passing of this Act.”

[Baroness Jones of Whitchurch]

My Lords, as well as moving Amendment 70, I shall also speak to Amendments 71AA and 71AB, all of which would add a new clause to the end of Part 3 of the Bill. The amendments are all, in different ways, trying to move forward on the increasing social evil of online abuse and trolling.

Amendment 70 would require the Secretary of State to carry out a review of online abuse, consult widely and report back to Parliament within six months of the passing of the Act. Amendment 71AA would require commercial internet sites that host personal accounts to take responsibility for the material posted on the sites, issuing a safety impact assessment, informing the police of violent threats and removing posts that incite violence. Amendment 71AB would require the Secretary of State to issue a code of practice with which social media platform providers must comply and which would include how they should respond to online abuse and how they should protect children. We believe that our amendments all provide the Government with a road map for action on an issue of huge social concern. They are in themselves probing amendments, but provide practical solutions that we hope the Government will take seriously.

The deluge of online abuse has massive child welfare implications. We know that social media sites are increasingly being used to bully, bribe and intimidate young people. The charity Childnet has identified that one in four teenagers suffered hate incidents online last year, and the incidents are increasing. Teenagers with disabilities and from minority ethnic groups are disproportionately targeted. Schools are reporting that malicious posts, personal abuse and fabricated stories are undermining young people’s self-esteem, distorting their self-image and encouraging risky behaviour. All these trends are having a knock-on effect on child mental health, with demand for support increasing and services unable to cope. For example, a record 235,000 young people accessed mental health services last year, but many others were denied the help they need.

I have focused on young people, but we know that this is also a problem in the adult world. The recent survey of MPs highlighted the threats of violence, appalling levels of anti-Semitism and sexist abuse. The MP Luciana Berger has spoken openly about the torrent of anti-Semitic abuse she has received, including threats of violence. The latest reports show a 36% increase in anti-Semitic incidents last year. Luciana reported that Twitter was slow to act, even when cases were drawn to its attention, and that the police and social media did not co-operate effectively to intervene when allegations were made. Even when prosecutions took place, some of the abuse sites could still be accessed on Twitter. Other women MPs have been subjected to graphic messages threatening rape and murder, and we know that those are not always idle threats, as the tragic death of Jo Cox all too starkly reminded us.

Of course, the abuse directed at MPs is a tiny example of what is happening day in, day out, both to those in public office and to private individuals. Some of these incidents are investigated and some are not. For example, we know that 155 people were jailed for sending grossly offensive, indecent or obscene material. Equally, we know that that is the extreme end of trolling, and that many other people have reported that their complaints were not taken seriously. It feels as though we are no longer in an agreed area for behaviour. There are no longer clear rules about what is acceptable and there are no longer clear penalties for those that transgress them.

We do not pretend that the measures we are proposing will be a panacea that will resolve these huge social challenges, but we hope that they might be a first step to capturing the scale of the problem and giving people more reassurance about the direction of legislation in the future.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, the Government take the harm caused by online abuse and harassment very seriously, and we will continue to invest in law enforcement capabilities to ensure that all online crime is dealt with properly.

Amendment 70 would require the Government to carry out a review of online abuse and lay a report before Parliament within six months of Royal Assent. We do not believe that it is necessary to include provision for a review in primary legislation. As part of the ending violence against women and girls strategy, we have established an official government working group to map out the current issues, prevalence, initiatives and barriers to addressing gendered online abuse and to produce an action plan.

We are absolutely clear that abusive and threatening behaviour is totally unacceptable in any form, either offline or online. As the Committee will be aware, any action that is illegal when committed offline is also illegal if committed online. Current legislation, some of which was passed before the digital age, has shown itself to be flexible and capable of catching and punishing offenders, whether their crimes were committed by digital means or otherwise. The Protection from Harassment Act 1997 was amended to introduce two new stalking offences to cover conduct that takes place online as well as offline. In addition, the Government will be introducing a new civil stalking protection order to protect victims further.

We will continue to take action where we find gaps in the legislation, just as we did with cyberstalking, harassment and the perpetrators of grossly offensive, obscene or menacing behaviour, and of course we introduced a new law making the fast-growing incidence of revenge porn a specific criminal offence.

The Law Commission recently consulted on including a review of the law covering online abuse as part of its 13th programme of law reform, which will launch later this year. It is expected to confirm with Ministers shortly which projects it proposes should be included.

We are also working to tackle online abuse in schools and have invested £1.6 million to fund a number of anti-bullying organisations.

In addition, we are working to improve the enforcement response to online abuse and harassment so that it can respond to changing technologies. The Home Office has also allocated £4.6 million for a digital transformation programme to equip forces with the tools to police the digital age effectively and to protect the victims of digital crime, including online abuse and harassment. Police and prosecutors evidence offences carried out digitally, non-digitally or both. The CPS Guidelines on Prosecuting Cases Involving Communications Sent via Social Media makes clear the range of criminal law which can be brought to bear on offences committed through social media. Moreover, from April 2015, police forces have been recording online instances of crimes, including stalking and harassment.

I shall talk about the next three amendments together, as they all cover the duties of social media sites. Amendment 71AA seeks to make it a requirement for all social media sites to carry out a safety impact assessment. Amendment 71AB seeks to require Ministers to issue a code of practice to ensure that commercial social media platform providers make a consistent and robust response to online abuse on their sites by identifying and assessing online abuse. Amendment 233A seeks to impose a duty on social media services to respond to reports posted on their sites of material which passes the criminal test—that is, that the content would, if published by other means or communicated in person, cause a criminal offence to be committed.

The Government expect social media and interactive services to have robust processes in place that can quickly address inappropriate content and abusive behaviour on their sites. On the point made by the noble Baroness, Lady O’Neill, it is incumbent on all social media companies to provide an effective means for users to report content and perform the actions that they say they will take to deal with this. We believe a statutory code of practice is unworkable because there is no one-size-fits-all solution. Dealing properly with inappropriate content and abuse will vary by service and incident. Technological considerations might differ by platform and as innovation develops. Users will benefit most if companies develop their own bespoke approach for reporting tools and in-house processes.

Social media companies take down content that is violent or incites violence if it breaches their terms and conditions. We expect them to inform the police where they identify significant threats or illegal activity happening on their sites. It is, however, extremely difficult to identify where the threat has come from and whether it is serious. We work closely with companies to flag terrorist-related content and have so far secured the voluntary removal of over 250,000 pieces of content since 2010.

I can assure the Committee that we share the sentiments expressed in these amendments. At the moment, though, they are not practical or necessary, so I hope on that basis noble Lords will not press their amendments.

[Baroness Jones of Whitchurch]

My Lords, first, I am grateful to the noble Baroness, Lady Janke, for stressing her point on enforcement. That is at the heart of the debate that we are having today. A lot of fine words are being said, but they are lacking the guts and enforcement to make any real change.

I am also grateful to the noble Baroness, Lady O’Neill, who quite rightly made the point that material does not consistently get taken down. That very much chimes with evidence that we have received as well. Luciana Berger MP has made the point that, even when a case of anti-Semitism was taken to court and the perpetrator was taken to jail, the site that they had created stayed up on social media and was still there for anyone to access—that cannot be right. It raises questions about the responsibility of social media sites and whether they are acting with enough responsibility and consistency.

I was really saddened by the Minister’s response this afternoon, because I felt there was a degree of complacency in what he said. I do not know how much more evidence he needs to realise that the current arrangements are not working. As we have been saying, children and adults are suffering. There does not seem to be a mechanism where, if you feel that you are being abused, threatened, or having vile things said about you on sites, you can get any consistent recourse to have the matter dealt with. People say, time and again, that social media sites and the police are not working together consistently. On some occasions social media sites take action, but then the police do not follow it up. Sometimes it is vice versa: the police get involved, but then the social media sites do not carry out their responsibilities. This needs another look at—whatever the level or structure for which that is appropriate.

I will not press my amendments today, but I will not give up on this issue. I say to the noble Lord—and it may be that we can have further discussions on this—that a more robust response is needed from the Government than we have had so far, so I hope we can carry on this discussion. I beg leave to withdraw my amendment.

Amendment 70 withdrawn.

Moved by

[Baroness Jones of Whitchurch]

71: After Clause 26, insert the following new Clause—
“Internet pornography: requirement to teach age requirement and risks as part of sex education
After section 403(1A)(b) of the Education Act 1996, insert—“(c) they learn about the risks and dangers of internet pornography, and the legal age requirement to access internet pornography under Part 3 of the Digital Economy Act 2017.””

[Baroness Jones of Whitchurch]

My Lords, Amendment 71 requires schools to teach the risks and dangers of internet pornography, as well as an understanding of the new age restrictions which will apply to accessing pornography. This is not a new issue. For the last six or seven years we have been pushing for updated guidance on sex and relationship education. It remains a mystery as to why the Government have been dragging their feet on this issue for quite so long. The fact that our amendment addresses only part of this bigger demand results from the restrictions placed by the scope of the Bill, rather than from a watering down of our commitment to PSHE being a mandatory part of the school curriculum.

--- Later in debate ---

[Baroness Jones of Whitchurch]

I thank the Minister and the other noble Lords who spoke in support. What the Minister said was quite right: if we were to start drafting Part 3 on our own terms, it would begin with education and everything else would filter down after that. The age verification process is definitely a supplementary part of a bigger challenge we face.

I accept, as the Minister said, that maybe progress is being made on this matter in another place on another Bill. That Bill will probably be resolved before we come back on Report, so we will watch what happens in the other place in some detail. If they are not able to resolve it, maybe we will be—so we could return to it at that point. In the meantime, I beg leave to withdraw the amendment.

Amendment 71 withdrawn.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

I expected more people to be inspired by the contribution of the noble Lord, Lord Arbuthnot, and to join in the debate. I am rising to give my support to Amendments 105 and 106 and to thank the noble Lords, Lord Arbuthnot and Lord Carlile, for highlighting this simple failure in company policy, which can lead to much bigger dangers and threats. As the noble Lord said, it can have commercial implications, personal privacy implications and, ultimately, national security implications. While we all have a part to play setting the highest standards of data protection, it is true that all too often we put the focus on national Governments without recognising the equal responsibilities of the private sector and private companies to play their part. This is particularly vital, given the number of private sector organisations which access data for government contract work. However, it also extends into other realms of commercial activity, such as commercial personal profiling, in which companies build vast data banks of our shopping habits, our friends, our movements—literally, where we are moving around in cities and towns—and our vulnerabilities, all of which have huge value both in their own hands and in the hands of cyber-thieves. These are issues which we have also flagged up in other amendments tabled today, and we have tried to build in more safeguards. My noble friend Lord Collins has said that we believe that individuals should have the right to know what information is being held about them, for example. They should have the right to be able to withdraw permission for the data to be held, and they should have the right to know immediately if a data breach has taken place.

We welcome the amendments, which would begin to address some of our concerns, by putting a straightforward obligation on companies to prepare a cybersecurity report each year, detailing the measures being taken to ensure that data are being kept safely. It is a simple ask, and it should not really be necessary, but the all too frequent security breaches taking place underline why a legal requirement has to be imposed. An Institute of Directors report last year showed that companies tend to keep quiet when there has been a security breach. As a result, there are no accurate figures on the extent of this crime, or the extent to which companies are being held to ransom. A survey of business leaders found that only half had a formal strategy in place to protect themselves and just 20% held insurance against an attack. Yet we also know that companies are also losing confidence in their encryption systems, their staff capabilities and awareness and the ability of their software to withstand a deliberate assault.

This is a huge issue. Of course, we have a vested interest in sorting this out, as often it is our personal data which are being stolen. But on a wider sphere it impacts on everything from company finances to sensitive market data and research and development. So we very much welcome the initiative set out in these amendments, and agree with the noble Lord, Lord Arbuthnot, that they are helpful. In itself, they will not completely solve the problem, but they represent another small step in getting companies to act responsibly in managing the data that they hold.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Part 5 of the Bill requires public authorities and specified persons to specify and meet specific legislative conditions and controls on the handling of personal information. As I have said on a number of occasions this evening, these provisions will be underpinned by codes of practice setting out data security requirements, including cybersecurity. A body that fails to meet these could be prevented from using the data-sharing powers. That is the context in which I turn to Amendments 105 and 106.

Amendment 105 would require all but the smallest of companies to conduct audits on their cybersecurity and to report annually on it and their data protection measures. Clearly, the Government recognise that effective cybersecurity risk management is important to the success of the economy and, indeed, to ensuring the safety and integrity of private citizens’ data. The Government conducted the Cyber Security Regulation and Incentives Review in 2016 to consider whether we need additional regulation or incentives to boost cyber risk management in the wider economy and it showed strong justification for regulation to secure personal data.

The Government will seek to improve cyber risk management through our implementation of the EU general data protection regulation in May 2018. Its requirement to report breaches to the Information Commissioner and individuals affected, and the fines that can be issued under it, will represent a significant improvement. These will be supplemented by a number of measures to more clearly link data protection with cybersecurity, including through closer working of the Information Commissioner and the National Cyber Security Centre. However, we will not seek to pursue further general cybersecurity legislation for the wider economy as would be required by Amendment 105.

We believe that mandating the inclusion of cyber risk information in annual reports, or the introduction of legal provisions for cyber audit, is unlikely to be an effective way of encouraging large-scale change in cyber risk management. Instead, the National Cyber Security Centre plans to work with stakeholders to develop guidance for investors. The long-term aim of the organisation is to include cybersecurity in the guidance it provides to businesses on the kind of information it wants to see in an annual report, and in the reports it provides to investors each year on every listed company.

Amendment 106 is very broad in its aims and, as such, could have unintended consequences for the diverse range of grants that the Government fund each year. The supporting audit and insurance regime would be costly and challenging to enforce given the diversity of grant recipients, including those from voluntary and research communities. Furthermore, this amendment is unnecessary as many of these checks are in place as a matter of routine. The level of cybersecurity risk in grants will continue to be monitored and consideration given to how recently launched grant standards could be used to strengthen guidance in this area. This provides a far more flexible and proportionate solution than legislation.

With respect to subsection (2) of the proposed new clause in Amendment 106, the Government are already taking tangible steps to reduce the level of cybersecurity risk in their supply chain. As of October 2014, suppliers of central government contracts that involve the handling of personal data or the supply of IT products and services must demonstrate they have met the technical requirements set out as part of either the government-owned Cyber Essentials scheme or a suitable equivalent. The scheme was developed jointly with GCHQ and industry to support organisations of all sizes and across all sectors in getting a good, basic level of online security in place. In response to my noble friend Lord Arbuthnot I would observe that, as of the end of December 2016, nearly 5,500 certificates had been issued under the scheme, and we have a strategy in place to significantly increase the adoption of the scheme over the coming year. With that explanation, I hope my noble friend will withdraw his amendment.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Baroness Benjamin]

My Lords, this amendment is of crucial importance because, unlike the age verification provisions that we have considered in Part 3, which provide protection for children only from 18-rated pornographic material, the filtering provisions engaged by this amendment help to protect adult content in the round, including gambling, violence, self-harm and so on.

We should be in no doubt about the importance of adult content filters. However, I have a question for the Minister. This amendment effectively says to an ISP that if it wants to provide adult content filters it can do so legally in the UK. This is helpful for the 88% of the market that is covered by the agreement between the big four ISPs to provide unavoidable choice or default-on adult content options. So what is the Government's policy in relation to the remaining 12%? If it is really important that the big four provide unavoidable choice or default-on adult content options during the set-up, why is it not equally important that the smaller ISPs do the same?

I am not interested in whether or not it is strictly necessary under EU law. I am simply concerned that we should have the best protections in place for all children—those whose parents use one of the four largest ISPs and those whose parents do not.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support these two amendments. As the noble Lord knows, they have been the subject of considerable discussion and debate in the past. We all share the objective of allowing family-friendly filters to remain on internet services and mobile networks in the UK. As the noble Lord set out, the arrangements we currently have in the UK were brought into question by the EU net neutrality rules introduced last year, which appeared to ban individual countries from restricting access in this way. Since then, there have been a number of different interpretations of how the EU rules would affect the UK—perhaps complicated by the fact the Ministers themselves were not able to clarify the situation with their usual adeptness. Indeed, it still appears that the EU open access regulations and our commitment to family friendly filters are in some ways in contradiction.

The Minister will know that many of the internet companies have taken the view that the less said about this issue the better. Their argument is that if attention is not drawn to the contradiction, they can carry on with the previous practice—under the wire, so to speak. Of course, for a lot of reasons this is not a very attractive proposition, and we accept that it would make the status of family-friendly filters more vulnerable as time went on.

So, instead we have the amendments tabled by the Minister today. When I asked at a previous meeting with the Minister whether the amendments had been checked out legally, I was assured that this was the case. We have not seen that legal advice and therefore have to take it on trust that what is before us today is legally watertight and does not contravene EU rules.

To some extent we are taking all of this on trust. While it would be easy to demand more evidence, I accept that it would not help the case of those committed to family-friendly filters—I suspect that the more we probe, the more the robustness of the proposals before us could unravel. We support the intent behind these amendments and it is certainly not our intention to bring them into question in any way. I hope that they achieve the outcome to which we are all committed. I hope therefore that noble Lords will support the amendment.

[Lord Clement-Jones]

My Lords, both my noble friend Lady Benjamin and the noble Baroness, Lady Jones, are far more authoritative on this subject than I could possibly be. I just want to add our support from the Front Bench for these two amendments. The noble Baroness made an important point, which is that we very much hope that the amendments are effective in clarifying the situation. There is no absolute guarantee of that but they have a fair wind because of the nature of the voluntary system of family-friendly filters that they underpin. I very much hope we do not do too much “probing”—I think that is the word that the noble Baroness used—as we are just happy that we can continue with the same system as we had before. I also think my noble friend Lady Benjamin asked an important question regarding where the gaps are in terms of the smaller players.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am very pleased to speak in support of Amendment 229, to which I have added my name, which aims to secure the future and sustainability of original TV children’s programmes. I pay tribute to the campaign Save Kids’ Content for its diligence in championing this issue over a long period. I am sure it will continue to do so. I also pay tribute to the work of the noble Baroness, Lady Benjamin, who has been a great figurehead for this campaign. As the noble Baroness and others have said, it is incredibly frustrating that the quantity and quality of children’s programmes have suffered such a rapid decline over the last 15 years. It feels as though it is the result of policy neglect rather than a deliberate plan to let the provision deteriorate, but whatever the reason, the outcome is still the same. As we have heard, there has been a reduction in spending of more than 50% on children’s programmes, and a drop of 93% by commercial public service broadcasters. As the noble Baroness said, the heroic exception is the BBC, whose investment in CBBC and CBeebies has provided a crucial creative flow for children’s entertainment. But it cannot be right that the responsibility in the longer term remains on the BBC’s shoulders. Ofcom itself recognised in its 2015 review of public service broadcasting that there is an issue:

“In children’s content, there is very limited provision of non-animation programming beyond the BBC”,


and went on to say that this represented a substantial risk to Parliament’s objective of strengthening public service broadcasting to this group. I would argue that we have a responsibility as Parliament to address this shortcoming.

We should all care about what programmes are available for children to watch. They have just as much right as adults to expect high-quality entertainment and the knowledge that will enrich and inspire their lives. In a sense, what people watch as children develops the habits and interests they will have as they move on to programmes and entertainment for teenagers and adults. Our great expectation that public service broadcasters will provide very good quality programming for adults is wasted if we do not provide for the next generation as well, so that it can recognise it and create that demand for it. Children also have as much right to see UK-made content.

We all squirm when we see reality TV programmes in which children have been somehow dumped in front of an endless diet of American cartoons, but we are complicit in making that a reality. It does not need to be like this and our amendment is a practical and balanced approach to reversing the decline. It would introduce powers for Ofcom to set quotas for broadcasting original children’s programmes as a condition of a PSB licence, and it would require PSBs to report to Ofcom annually on how they are meeting those targets.

As has been said, inherent in the proposals is flexibility for Ofcom and the PSBs to agree how the targets can best be met. This would allow each PSB to take a separate approach to delivering the expanded children’s programme output, including access to the contestable fund. I agree with my noble friend Lord Gordon that the money from local TV could be put to much better use by making quality children’s programmes, so perhaps that is one of the factors that could be put in the mix.

Only an initiative on this scale will reverse the decline. We have in the UK the programme makers with the skills and the creativity to produce programmes and build an expanded children’s TV offer. Moreover, the demand is there because each new generation brings with it its own demands, so I do not agree with my noble friend that people pass through and that is the end of the story. New generations come forward and we want them to be able to recognise what quality programming really is, and we will do that only if we reach out to them when they are children.

It was never the intention of Parliament to let children’s TV fall into such disrepair, and this is our chance to do something about it. I hope the Minister will listen to the strong case that has been put forward and that he will see the proportionality of our proposals. I hope also that he will feel able to support the amendment and to work with us to make the changes we are proposing a reality.

--- Later in debate ---

[Baroness O'Neill of Bengarve]

My Lords, it is late, and I do not want to repeat myself. I am sure that the noble Baroness, the noble Lord and the whole of that long Front Bench—almost as numerous as the rest of the House at this hour—know this issue not going to go away. This retrospective consultation does not do the Government honour. I hope that they will take some action.

[Baroness Jones of Whitchurch]

My Lords, again, given the lateness of the hour, I simply say that our views are well known, that we have supported the implementation of Section 40 in a number of previous debates in this Chamber, and on that basis we support the amendment.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Baroness, Lady Hollins. I will address Amendments 233F and 234A together. The amendments, of course, mirror Section 40 of the Crime and Courts Act 2013 but would apply to digitally published news-related material only, as we know. The House has debated the issue of Section 40 on various recent occasions, including during passage of the Investigatory Powers Act and the Policing and Crime Act. There was also a stand-alone debate just before the Christmas Recess.

There is obviously a great strength of feeling about this matter. I realise that some Members of this House are frustrated by what they see as a lack of progress by government on Section 40. However, the Committee should also recall the strength of feeling on the other side of the debate. Many noble Lords have argued passionately in this House against Section 40 and are concerned about its commencement and its impact upon freedom of the press. That is why the Government ran a consultation to consider the matter further.

The press self-regulatory landscape has changed significantly in the past four years since the Leveson inquiry reported. It is right that the Government take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established can never happen again.

A consultation was the most appropriate way to ensure that the Government were listening to all views when considering options for the next step in respect of Section 40. Indeed, the consultation closed on 10 January, and it is estimated that we have received more than 140,000 responses. I know that many Members of this House responded to the consultation, and of course we are grateful that they took the time to do that, but many others have responded as well. It will be necessary to consider the many and diverse views that have been expressed with regard to this matter.

As many Members of the Committee will know, and as the noble Lord, Lord Prescott, mentioned, the consultation is now subject to a legal challenge. While I cannot comment on the ongoing legal proceedings, the Government have committed not to take any final decisions on the matters to which the consultation relates until the judicial review application has been determined. As such, it is not possible for me to set out a timetable for when the Government will respond to the consultation. But of course we hope that that judicial review application will be determined much sooner than later.

That brings me on to the amendments from the noble Baroness, Lady Hollins. The issues that she has raised are of critical importance. I appreciate that she and her family were themselves the subject of press abuse, as were other Members of this House. I also recognise the strength of feeling that parties have on the commencement of Section 40. However, with respect, now is not the right time for this House to consider the present amendment.

News consumption is becoming increasingly global and more and more people are reading their news online from a multitude of sources from around the world. Bringing in a law that effectively mirrors Section 40 but for relevant digital publications only would create an incoherent regime applying different rules depending on the mechanism by which an article has been published.

Noble Lords who have supported these amendments have raised the profile of this issue and given a clear signal of their intent—and of their continuing intent. This has not gone unnoticed in government. But we must ensure that we consider this matter properly. As I said before, a free press is an essential component of a fully functioning democracy and we must ensure that we protect that. I note what the noble Lord, Lord Prescott, said about the position in Ireland. I am not in a position to express a view as to the manner in which that operates but I am perfectly content to indicate that we will look at that going forward as well. I hope that that will satisfy the noble Lord. At this stage, however, I urge the noble Baroness, Lady Hollins, to withdraw her amendment.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

Report: 1st sitting: House of Lords
Wednesday 22nd February 2017 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I support the amendment of the noble Lord, Lord Clement-Jones. He talked about the principle of transparency, and that is the nub of it. I shall just give an example: the history of pop music has, in many ways, been the history of exploitation of artists in a bad way. Much of that exploitation was based, in the past, on keeping artists in the dark. I am sure that today many licensees and transferees—some of which are huge companies—behave very well, but there is a systemic imbalance here, which means that there is potential for abuse. Artists have a fundamental right to information about exploitation of their work, which is, in any case, useful for knowing quite simply what has happened to their work when it is pushed out into the world.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this again today. As both previous speakers have said, it is a really important issue for authors, writers and musicians, who are operating in an increasingly complex world where it is very hard to keep tabs on the use that is being put to their own creative work and the way it is being distributed and accessed. As a result, many in the sector feel that they are not properly rewarded for their creative endeavour. It is obviously crucial to us that we encourage them to continue to be creative and help them to be fairly rewarded because, as we increasingly begin to recognise, that creativity is not only important to them but will be an essential bedrock of the UK’s future prosperity in the years to come.

The noble Lord quite rightly raised the issue of the draft directive on copyright, and he quoted the Minister’s reliance on the discussions of that draft in her response in Committee. However, as with other pieces of draft EU legislation, there is now a horrible feeling that the clock is ticking and that time might run out before the directive can be transposed into UK law. Therefore, we very much support the noble Lord in his bid to bring more certainty to the lives, and the incomes, of our much-valued creators.

I would like to raise two further points. First, the amendments as they stand assume that all publishers have the facility to provide regular statements of income outside the normal accounting periods. This is indeed easy for the large publishers, which already have author portals where this kind of detailed information is uploaded in real time and accessible to authors and their agents on a daily basis. However, we should also spare a thought for the smaller publishing houses, whose growth we also want to encourage, and which might not have such sophisticated accounting systems. The wording of the amendments might be rather too prescriptive or open to interpretation in this regard. We do not want to add too much of an extra burden to those smaller organisations.

Secondly, and perhaps more importantly, the amendments do very little to help those authors who are beholden to Amazon, which publishes 90% of e-books and is responsible for a significant proportion of physical book sales. Its behaviour in driving down prices through heavy discounting is seriously damaging the incomes of authors and publishers alike. Therefore, you can have transparency and fairness, but we will not add much more value back into the creative sector unless steps are taken to curb the monopolistic behaviour of Amazon. Perhaps the Minister could advise us as to what steps are being taken to monitor that increasing dominance of Amazon and to look at the impact it is having on the income of people who are trying to be creative and whom we very much want to value. At what stage would the Government take steps to intervene to make sure that those incomes are, in some way, protected for the future?

[Baroness Buscombe]

My Lords, I thank all noble Lords who have taken part in this debate on Amendment 24, tabled by the noble Lords, Lord Clement-Jones and Lord Foster. This amendment, which was first tabled in Committee, partly reflects proposals currently under discussion at European level as part of the draft copyright directive, as noble Lords have said this evening. It would require organisations using copyright works via licences to provide creators with regular information on how their work has been used, and the revenue generated by their use. This obligation could be met by complying with a code of practice determined at sector level. The amendment also provides creators with recourse to the intellectual property enterprise court in cases where such a code was not implemented or adhered to.

As we said in Committee, the Government agree that transparent markets can benefit all parties. I particularly understand the potential benefits of transparency in areas such as the creative industries, where individual artists—writers, musicians and performers, as noble Lords have said so eloquently this evening—often deal with large corporations. As noble Lords are aware, the Government are currently in the process of negotiations on the draft copyright directive, and I continue to hold the view that we should allow this process to reach a conclusion before considering the case for domestic intervention. I appreciate that the noble Lords, Lord Clement-Jones and Lord Foster, the noble Earl, Lord Clancarty, and the noble Baroness, Lady Jones, would welcome a firm statement of support for the Commission’s proposals in this area. Unfortunately, however, I am not in a position to give such a statement this evening. However, I can assure noble Lords that the information received in the recent call for views on the directive has been carefully considered, and that the Government will continue to engage constructively in this debate, including in relation to the role of collective bargaining mechanisms and industry-led codes in improving reporting to creators.

I also wish to raise another issue regarding the amendment. The proposals from the European Commission include an ability for member states to adjust or restrict the transparency obligation in certain cases, taking into account, for example, the contribution of an individual creator to an overall work, or the proportionality of the administrative burden. Views on the benefits of these powers are mixed, and are likely to require careful consideration with the creative industries at sector level if the directive comes into force in the UK. However, I believe that it would be imprudent to accept an amendment at this stage that does not appear to provide the Government with similar flexibility. Doing so could risk imposing burdens on publishers, producers and broadcasters that restrict their ability, in effect, to develop new talent. With this explanation and the renewed assurance that the Government really do take the concerns of creators in this area seriously, I hope that the noble Lord will withdraw his amendment.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 20th March 2017 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the Minister for introducing his amendments today. I am also grateful to the noble Lord, Lord Paddick, for bringing some clarity to what has been quite a complicated and emotional debate this afternoon. I urge noble Lords to look at Amendment 25YW in this group, which is in my name, because I believe that would take us some way through some of the dilemmas that we face this afternoon.

As has been said, these amendments arise from a dialogue we have been having over the last few weeks about the definition of “prohibited material” and “extreme pornography”. That arose as a result of late additions to the enforcement measures in the Commons, which meant that the Bill did not receive the scrutiny it deserved at that stage. Hence we have been scrambling to understand and to consider the new requirement for internet service providers not only to block sites that do not have age verification filters in place for children but also to block access to other illegal pornographic material. I agree with other noble Lords that it is very unfortunate that this has come at such a late stage and that we are trying to deal with this important issue so late in the process. We are all at a loss and have lacked something because of it.

Since then, several variations of wording have been taken from Acts that already exist and put forward as the best way of defining the new obligation. We find ourselves having to take a significant decision on which of these various options would best benefit the law going forward. All of them would benefit from further debate.

In this context, and given the sensitivities involved, we welcome the Government’s attempt to strike the right balance on this issue. Government Amendment 25YV is crucial in this regard. It is a short amendment that says:

“Nothing in this Part affects any prohibition or restriction in relation to pornographic material or extreme pornographic material, or powers in relation to such material, under another enactment or a rule of law”.


In other words, if pornographic material is illegal offline, it would also be illegal online. The amendment underlines that point. This is the parity between offline and online that many people have sought, and it echoes the position that the Minister spelled out when we met him recently. We support this approach because we believe that any definition of illegal material transposed into the Bill at this late stage should be based on current statutory definitions.

We also recognise the added challenge that the current legal definitions are not being applied consistently, and that the Crown Prosecution Service guidelines need to be updated—which is another issue that we have been debating this afternoon. Only then will we achieve that true parity in removing offline and online material. But we are firmly of the view that this disparity should be addressed separately, and thoroughly, in conjunction with the Home Office. We are also firmly of the view that today we should focus on the intent of this Bill, which is to introduce age verification processes to stop children under 18 from accessing pornography. The debate this afternoon has muddied the water, because that is very clearly the intent of this part of the Bill, and the way that the government amendments are set out achieves that very important aim.

This is a huge step forward and a key policy prize. It is something that not just the Government but all the main political parties have been committed to. There is no doubt that if it is implemented successfully—although that is a huge ask—there will not be the opportunities for children to access the illegal material that is concerning noble Lords today. I accept of course the point made by the noble Lord, Lord Browne, that this cannot be 100% watertight—none of these things can be. We are on a journey. I think it was one of the right reverend Prelates who said that children are very tech-savvy and we have to keep up with them. Of course we do, so this will not be 100%. But it is a massive step on a journey that will stop an awful lot of casual viewing by children of internet pornography.

That is why we believe that we should retain our focus on children—to prevent all damage to their relationships, self-esteem and mental health, and all the issues which, we understand, result from underage viewing of pornography, which we have debated repeatedly during the course of the Bill.

Of course, that is not to say that there are not other huge social issues about adults viewing violent or degrading pornography—and we all have our views on the level of acceptability of that. I resent the fact that some people think that I am in favour of a free for all, because that is certainly not my position. Some of the issues have been raised by noble Lords today, and of course it is right that they are debated and resolved in the public realm. I agree with the noble Lord, Lord Alton, that there needs to be a public debate. It has been lacking until this debate today, which I believe is the beginning rather than the end of a debate which should take place.

We welcome that debate, but we do not feel that amendments to change the definition of illegal pornographic material which adults can access online is appropriate for a part of a Bill that is intended for another purpose. We believe that this should be part of a wider debate which factors in such matters as our traditional tolerance towards consenting adults and the potential consequence of more online material being driven out of reach on to the unregulated dark web if we do not get the regulation right. In this context, we appreciate the opportunity which the Minister has proposed for a wider round-table debate on internet safety and will happily work with colleagues away from the Bill on how we can best deliver solutions to some of the wider concerns that have been expressed today.

In the meantime, we recognise that the definition of extreme pornography now proposed by the Government is not ideal. It may be only a backstop pending a fuller review of more appropriate wording. That is why our Amendment 25YW would require consultation on the definitions used in this part of the Bill and a report from the Secretary of State back to Parliament within 18 months. We think that that would be a real step forward.

Although we have sympathy with the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, we are concerned about the more prescriptive end of her review. We agree that there should be a review, but the very fact that she has already spelled out what the outcome should be causes us concern.

Our view remains that we should be looking for an updated definition based on something deliverable online and offline with equal strength. A number of definitions are out there—not just the definition of extreme pornography that we have been debating today. In other pieces of legislation there are other definitions. We need to do a job of work which is more than we can do today to consider all those definitions, consider what the Crown Prosecution Service can deliver in terms of taking action against people, and work on that basis.

I really hope that we can work together on this, because this has felt like a very divided debate. It is not; there is an enormous amount that we agree on. It is the tactics of how we go forward that we are struggling with.

In conclusion, we support the government amendments, as far as they go, but I hope that the Minister will be able to commit to a wider review with a deadline for reform—in conjunction with his Home Office colleagues, because we recognise that this goes wider than his department’s remit. I hope that noble Lords will look at our amendment and support it. I look forward to the Minister’s response.

[Lord Ashton of Hyde]

My Lords, this has been a wide-ranging debate and I find myself in a slightly uncomfortable position: I am taking issue with several of my noble friends but I very much agree with the noble Baroness, Lady Jones, and the noble Lord, Lord Paddick. If I may, I shall start with the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Jones, and then move on to our amendments and reply to some of the points that noble Lords have made.

Obviously, Amendment 25YD, in the name of the noble and learned Baroness, Lady Butler-Sloss, is dependent on the preceding government amendments being passed. It provides that, three years after the Act passes, the definition of “extreme pornographic material” will cease to have effect and will be replaced by a definition of material which would not be classified—in effect, the current definition of “prohibited material”.

The debate on this has been strong on both sides, and it is an interesting idea that we have considered. However, our aim with this Bill, as has been said by several noble Lords, is to protect children from accessing pornographic material. We are creating parity between the offline and the online worlds in protecting children from being able to access pornographic material. These are different and incomparable places, and this is the closest we can get on parity of content through the age verification regime. Subject to the Bill shortly gaining Royal Assent, to specify that this should happen in spring 2020 unless a review finds otherwise by spring 2019 is in our view unnecessarily restrictive. It presents a binary choice that predetermines the outcome of any review. We know this is a fast-moving environment, and we do not know what the landscape will look like in two years’ time. Forcing the legislation into doing something which restricts the response to how children are protected online could have unintended consequences.

What we are doing now is: through the guidance to the regulator, we are providing for the regulator to report annually on the effectiveness of the regime. This will provide the opportunity to review the regime and take any necessary action. This is a big step forward without precedent, and to focus on this one issue, which is undoubtedly important, risks being able to ensure that the regime as a whole is as effective as possible in the future at preventing children from accessing pornography online.

The amendment in the name of the noble Baroness, Lady Jones, seeks to introduce that the Secretary of State must produce a report on the impact and effectiveness of the regulatory framework provided for in this part and must consult on the definitions used within this part. The report must be laid 12 to 18 months after the powers come into force. We must aim to lay the groundwork for success before the powers are introduced, and the regulatory framework we are providing will do that. However, this will be a bold new regime with many challenges and it is right that the effectiveness of the regime is reviewed. That is why, as I have just said, through the guidance to the regulator we are providing for the regulator to report annually to the Secretary of State on the impact and effectiveness of the regime. Placing a formal requirement on the Secretary of State to do this is, in our opinion, unnecessary.

The Bill is neither the end nor the extent of our interest in child internet safety. The implementation of age verification will be watched closely from day one. We have consistently recognised the need to be flexible in our approach and this will remain the case in addressing any issues that may arise. This work forms part of our wider response to online safety, and the work that has begun in the internet safety strategy demonstrates our clear commitment to ensuring that people in the UK have a positive experience online. I shall come to that a bit later. With that explanation I hope noble Lords will not press their amendments in due course.

I turn now to replies to some of the points noble Lords made about the government amendments. I echo very much the remarks of the noble Lord, Lord Paddick. For those who have not participated before in this Bill’s process, it would be helpful to repeat some of the things he said about how we got here. In some ways it is a mischaracterisation—not malicious, I hasten to add, and maybe “misunderstanding” is a better word—that we are watering down the controls, as my noble friend Lord Farmer said, or that we slipped this in at the last minute.

As the noble Lord, Lord Paddick, said, the position we are in is because we have accepted amendments through the course of the Bill. It is a bit unfair of the noble and learned Baroness, Lady Butler-Sloss, to criticise the fact that this debate is happening so late in the day when the only reason we are having it is because we accepted the amendment in the House of Commons. The issues about where we go on what is effectively internet censorship were raised in Committee in this House. So we are discussing these things because noble Lords and Members of Parliament have changed the Bill as we went on. The one thing on which we all agree—and this has been confirmed all around the House—is that we want to address child online safety. One of the big advantages from this Bill is that, by getting effective age verification in place, we have made a huge step forward.

--- Later in debate ---

[The Earl of Erroll]

My Lords, I want to comment on Amendment 25D and to thank the Government for proposing new subsection (2B). One thing that worried those of us who had been thinking about how to make age verification work was the definition of “commercial basis”, which was a potential loophole for some websites to get round the provision. This proposed new subsection seems to close that loophole in that, even if material is free, it can still be provided on a commercial basis. Therefore, I congratulate the Government and support this amendment.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the Minister for explaining the thinking behind these many amendments. I have read them and think that I understand them but I am sure that he will correct me if my interpretation is wrong. They underline the considerable amount of additional work that is still to be done if we are to get a comprehensive age verification scheme properly up and running.

The Minister will know that the Delegated Powers and Regulatory Reform Committee was of the view that many of the details should be spelled out on the face of the Bill. For example, it expected details such as the definition of “commercial basis” and the identity of the regulator or regulators to be specified at this stage. However, the provision of this information, like many other details, has been put off by the Government to a later date, to be included in the guidelines to which the noble Lord has referred and to be discussed in further debates that will be taken under their auspices.

The DPRRC also requested that guidelines on how the financial penalties should operate should be brought before this House as an affirmative resolution. I remind the House of a particularly stark criticism that it wrote at the time. It said:

“We consider it objectionable as a matter of principle that a regulator, who is to be clothed with extensive powers to impose fines and take other enforcement action, should itself be able to specify how key concepts used in clause 15(1) are to be interpreted”.


I would be grateful if the Minister could justify why what seems to be a rather straightforward piece of advice from that committee has once again been rejected. As I understand the noble Lord’s amendment, it is the offer of a negative procedure that is now being put before us, which of course does not carry the same weight.

The amendments deal also with the provision for appeals, which again were debated at length in Committee. The Minister will know that the DPRRC recommended that a statutory right of appeal should be placed in the Bill. Again this advice seems to have been rejected by the Government and, instead, they are relying on a new formulation of words specifying that those hearing any appeal should be “sufficiently independent” of the age verification regulator. As we have heard, the detail of this “sufficiently independent” regime is spelled out in the draft guidance.

I have to say that we share the view of the noble Lord, Lord Paddick, that this really is not good enough. The guidelines specify that the independent appeals panel will effectively be appointed and funded by the regulator. However, we have tabled a separate amendment—Amendment 25P, which will come up in a later group—that specifies our belief that the appeals process should indeed be fully independent of the regulator. We believe that our amendment is more appropriate than that of the noble Lord, Lord Paddick. It would be helpful if the Minister could explain why the DPRRC’s advice on this matter has been rejected.

I return now to the overall package of government amendments in the group. As I have said, they seem to flag up a great deal of further work that will need to carry on outside the Bill. As it is worded, the Secretary of State will issue guidance to the regulator and the regulator will, in turn, issue guidance for approval to the Secretary of State. That seems a rather cosy arrangement of swapping guidelines back and forth, but it is not quite clear to me at what point Parliament will have the final say in all these matters.

Some of the outcomes will come before the House in the form of affirmative regulations but others will not. We do not yet know who the regulators will be, how the age verification regime will work, how the privacy checks will work, what the definition of “commercial activities” will be, how ancillary services will be defined and, crucially, we do not know how the internet service blocking system will work or what kind of fines will be imposed on those who fail to comply. Without wishing to overlay this, it all feels like a rather unsatisfactory piece of legislation. The amendments before us today and the guidelines that have recently been issued do little to reassure us that the Government really have got the detail of this in hand.

Regrettably, we feel that the Government are in danger of delegating far too many powers to the as yet unspecified regulator. This is an issue that we will return to in the next group of amendments. In the meantime, I look forward to hearing the Minister’s response on the points I have raised.

[Lord Ashton of Hyde]

My Lords, Amendment 25N in the name of the noble Lord, Lord Paddick, seeks to remove the word “sufficiently” from the appeals guidance. I will explain why we do not think that that is necessary.

The draft guidance to the regulator specifies that an appointments board engaged by the regulator must appoint an independent appeals board—independent of the regulator, government and the industries that are most likely to submit an appeal. The draft guidance explains that the members of the independent appeals board, appointed by the appointments board, should be appointed on terms and conditions that ensure their independence. Members should represent a broad spectrum of opinion and experience and be respected in their field. They should also be able to demonstrate a commitment to the standards of conduct set out in the Committee on Standards in Public Life’s The 7 Principles of Public Life. We agree that it is important that there is an independent, open, fair and transparent appeals process. Our amendment to the designation and guidance achieves this. It will deliver an appeals process that gives those affected recourse to an independent appeals panel which is not part of the regulatory body, and where the regulator has no say on who is a member and has no role in making the appeal decision.

Further parliamentary scrutiny at the time of designation will provide an opportunity to ensure that the arrangements are right. As part of the designation process, government Amendment 25Q requires the Secretary of State to lay before Parliament a statement of the reasons why she is satisfied that, for example, any person hearing an appeal will be sufficiently independent. Parliament will then have an opportunity to scrutinise this. In this case, “sufficiently independent” is an adequate description of a most robust appeals process. On that basis, I invite the noble Lord not to move his amendment.

I was somewhat taken aback by the noble Baroness’s criticism of our response to the DPRRC. We thought we had addressed—

[Lord Ashton of Hyde]

I am sorry, that has rather thrown me. I was saying that I was surprised by the noble Baroness. We think that we have agreed to the spirit of nearly all of the DPRRC amendments. We have not done everything to the letter but we have agreed to the spirit of its amendments. However, we have written back to the DPRRC about the classification of a regulator—which we will come to later—but that is purely because we are following other legislation.

[Baroness Jones of Whitchurch]

I specifically asked about the ability to impose fines and so on. That appears to be under a negative resolution in the government amendments.

[Lord Ashton of Hyde]

We have not designated the financial regulator. We will have to do that. I will check if it is under a negative resolution and undertake to write to the noble Baroness and talk to her about it. I cannot remember what it is, to be quite honest.

The point about the financial regulator—we will come to this in a later amendment—is that we have a disagreement about the extent to which the BBFC should carry out functions. The one thing that we are agreed on is that it should not carry out financial enforcement. We will talk later about what exactly it should and should not do. We have not yet designated who the financial enforcement regulator is—we will do that later—but we want to get the regime up and running before we decide.

The government amendments have addressed many of the points raised today and by other noble Lords during the passage of the Bill. They provide for greater parliamentary scrutiny, include affirmative procedures where there were none and provide greater clarity and direction to the regulator. The direction to the regulator will be laid before Parliament and we have invited noble Lords to contribute to that draft guidance. In all, that will give greater confidence that the measures will be in the best place possible to be successful. I beg to move.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

25J: Clause 17, page 19, line 47, leave out “may” and insert “must”

[Baroness Jones of Whitchurch]

My Lords, in moving Amendment 25J I shall speak also to Amendments 25K and 25P. They tackle three key aspects of the regulation regime as set out in Part 3. First, as we have said, we believe that a great deal more work needs to be done on the detail of the Bill, specifically on the functions of the regulators. It is important to get this right.

For example, potentially huge new powers will be available in Part 3, underpinned by large fines and considerable and as yet untested obligations laid on internet service providers, banks and advertisers. The core expectation is that these large institutions are going to help us to police pornography sites, but for this to work there has to be confidence in the competence of the regulators and that their judgments will be proportionate and legally watertight.

From our discussions so far with these groups, I do not think that we have quite reached that point. Like most people, they have sympathy with the aim of protecting children, but they remain somewhat confused about how this is going to work in practice and what their role will be. This is why we suggest in proposed new subsection (14) set out in Amendment 25P that there should be further widespread consultation about the designated functions and powers of the regulators before they are laid down in statute.

Secondly, there is the issue of who the regulator or regulators might be. As noble Lords will recall, the lack of detail about the roles that they are to perform was discussed at length by both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, which fed their comments through during the Committee stage. I will not rehearse all the arguments again because they have been spelled out, but as an example, the DPRCC concluded:

“We think it inappropriate to delegate to the Secretary of State, with only a modest level of Parliamentary scrutiny, the decision on whom to designate as the regulator”.


The truth is that the Government have not been clear on this issue, and indeed they seem to have changed their position as the Bill has progressed without a legitimate explanation for doing so. The original letter of intent, which was sent by DCMS to the BBFC last year, made it clear that it would carry out the front end of the regulatory framework with a different, unnamed regulator of equal status carrying out the enforcement functions set out in Clauses 20 and 21. This position was maintained by the Government throughout the Commons debates on the Bill. Thereafter, in the Lords Committee stage debate, the Minister said:

“We propose that the BBFC should carry out the initial monitoring, assessing and notification work, and we are carefully considering alongside this the option for an enforcement regulator”.—[Official Report, 2/2/17; col. 1297.]


Our amendment is consistent with that position.

However, the Government’s view has changed again. In a more recent letter to the DPRRC, they say that it is intended that the BBFC should carry out all the functions apart from issuing financial penalties. Finally, at a recent meeting the Minister, Matt Hancock, began to speculate that the BBFC could in fact carry out all the functions in the Bill and that a second regulator was not really necessary. This is confirmed in the draft guidance that was produced last week. It is clear that a degree of mission creep is taking place here without an adequate explanation. That underlines our concerns that the Government have not really thought this through. It is not clear why there has been a change of heart. It might be purely pragmatic because, as we understand it, Ofcom has shown a reluctance to take on the enforcement role, but that is not a good enough reason to load all of the powers on to one body with little experience of the scale of enforcement that is spelled out in the Bill.

We continue to be clear that there are two separate regulatory functions, both with considerable responsibilities and heavy resource commitments. They are, first, identifying persons who contravene the requirement to provide age verification filters or who display extreme pornography—it may well be that the BBFC is qualified to do that—and, secondly, taking the widespread range of enforcement actions, including imposing fines, cutting off payments and advertising revenue, and blocking sites as specified in Clauses 20 to 23. This is how the Government originally intended the system to work, and it is a mark of good governance that the two roles should be kept separate.

Our amendment would remove the option of having just one regulator and specifies that there should be two or more. The relationship between the two bodies is set out so that appropriate checks and balances are in place.

The amendment also specifies that the appeals mechanism for decisions by the regulator should be fully independent and not appointed, overseen and funded by the regulator. Again, this is an issue that we have debated previously. We do not believe that the measures set out in the draft guidance address our concerns about appeals, and I hope that even now the Minister will concede that the Government need to revisit the level of independence of the appeals mechanism and to reassure us on that matter.

Finally, our amendment specifies the need for the regulators to have the status of a body corporate, independent of the Government and with all appointments made openly and transparently. Compelling arguments on this matter were put forward in Committee by my noble friend Lord Stevenson, and we continue to believe that they should be addressed before any regulator is appointed. Unlike most regulators, the BBFC is a private company with private arrangements for board appointments. It lacks the transparency and accountability of most organisations operating in this public sphere. It is to be appointed to a role where it will take on considerable extra functions that will be funded by the Government and with complex moral responsibilities at their heart, as we have heard in the earlier debates. We need a reassurance that its governance is of the highest standard, in keeping with the Nolan principles and open to scrutiny.

We believe that our amendments cover the essential factors which underpin a solid and credible regulatory structure. The Government should take time to make the appointments of regulators and they should think again about the drift towards one regulator, which was never originally envisaged. It is important to ensure that all the parties that will play a role in this new regime have confidence in the competence and authority of the regulators, and we believe that this can be achieved only if we consult further and widely about the functions as set out in our amendments. On that basis, I beg to move.

[Lord Paddick]

My Lords, I shared some of the concerns that the noble Baroness has just articulated about the role of the BBFC as both the group that will reach these decisions and the one to enforce them. However, having met with representatives of the BBFC, I have to say that I do not agree with the noble Baroness about heavy resource commitments. The BBFC is content that it should be able to carry out these roles with a minimal increase in resources. Also, bearing in mind the confidence that the industry currently has in the BBFC around classification and the awarding of certificates for films and DVDs, we are confident that were the BBFC to become the regulator, it could carry out both roles.

At the end of the day, the BBFC is not at all confident about how effective the financial penalty elements of the Bill will be, bearing in mind that the overwhelming majority of pornographic websites are hosted in other countries. In its view, the enforcement of financial penalties will be almost impossible, but it is confident that it could quickly and easily ask internet service providers to block websites that fail to provide adequate age verification. In these circumstances, we do not believe that we can support the amendments.

--- Later in debate ---

I therefore hope that, with that explanation and reassurance, the noble Baroness will feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the noble Lords who contributed to the debate. Of course I accept that the BBFC has considerable experience of dealing with classification. I will not rehearse the arguments that noble Lords put forward: it is of course the case. It is well known and well documented. The part of the Bill that we are concerned with concerns the enforcement role, which goes into uncharted waters.

The noble Earl, Lord Erroll, is quite right that the idea of notice and take-down is a very different way of operating and achieving your end goals. It is quite a novel way, and I am sure we all look forward to finding out whether it will work. The idea that to get pornographers to play ball, if you like, we will cut off their advertising or their money is a great initiative, but we do not know whether it will work. More importantly, I do not know whether the BBFC has any experience of trying to oversee a regime that operates on this basis.

As I said in an earlier debate, I have spoken to some of the internet service providers, and all of the organisations we are talking about here have every sympathy with what we are trying to achieve. However, they have a huge number of questions about how this will work in practice. It is very easy to say that we should block access to the sites, but it is much more difficult technically to implement and to oversee.

We could get carried away with the BBFC being in a position to take all of these functions over. I recall that when the BBFC gave evidence in the Commons before debate on the Bill started there it had much more modest ambitions about what it was able to do. It is interesting that it has been persuaded during the past few months that it should expand its horizons, but I have seen no evidence of it having been tested whether it has the staffing, the expertise or the funding in place, or whether it has the confidence of those whom they will regulate to carry out this role. It is with the back end of all this that we are concerned.

The Minister has implied that the Government’s thinking is the same, but if we look at what was said in the Commons, more latterly in debate here and now in writing, we see that the Government’s position on this has changed as well. I do not know that there has been an adequate explanation. As I said originally, I suspect that they do not have another obvious person lined up, so the people at the BBFC are the only ones volunteering to do it. I am not sure that that is the best basis on which to try out something which I believe could be an exciting way of achieving our aims. I am not convinced that we have yet seen the evidence that the BBFC has the skills to do it.

The Minister may not be surprised that I do not accept what he had to say. There is an issue about subcontracting all this work to a private company that is not properly overseen and regulated in the way that we would want. I beg leave to withdraw Amendment 25J but will seek to test the opinion of the House on Amendment 25P.

Amendment 25J withdrawn.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

25P: Clause 17, page 20, line 27, at end insert—
“(8) In designating two or more persons under subsection (1), the Secretary of State must specify that the same persons may not carry out functions under the sections specified in subsection (9), and the functions specified in subsection (10). (9) The functions specified in this subsection are the steps taken by the age verification regulator to identify that a person is—(a) contravening section 15(1);(b) making extreme pornographic material available on the internet to persons in the United Kingdom.(10) The functions specified in this subsection are the enforcement powers under sections 20 to 23.(11) The person or persons carrying out the age verification functions under subsection (9) must notify the person or persons carrying out the enforcement functions under subsection (10) of an identification under subsection (9), to enable that person or persons to take the necessary enforcement action.(12) Appeals procedures must be carried out by a body that is fully independent of the regulator responsible for the functions set out in subsection (9).(13) The regulator assuming the duties specified in subsection (9) is to be a body corporate which is independent from the Government and all appointments to the regulator are to be subject to fair and open competition.(14) No designation shall be made under this section until the Secretary of State consults all such persons as he or she considers appropriate on the role of the age-verification regulator for the purposes of this Part.”

[Baroness Jones of Whitchurch]

My Lords, for the reasons that I have just outlined, I wish to test the opinion of the House on this amendment.

--- Later in debate ---

[The Earl of Erroll]

My Lords, I will say a few words on this very quickly. I thoroughly approve of the premise of the amendment, which is to ensure that some websites do not try to cheat; in fact it would not be a bad idea to put it in the Bill.

I ought to declare an interest: I have been chairing a steering group working on British Standards Institute Publicly Available Specification 1296 on age checking. The whole idea is that this could be used in order to test the procedures and organisations doing age checking. One of the things that it mandates is privacy; it mandates that age checking must be general data protection regulation compliant. The real purpose behind this is that at the point when someone thinks of visiting a pornographic website there should be no requirement for that person to identify themselves to that website. It is perfectly possible at that point to bounce off the website with a token from that website to someone outside who may know about the person and can check their age, and then they can send back an encrypted token that can be stored saying, “This person, whose name I am not going to reveal to you, is over 18”. That is all it does. That can then be data checked and unwound by someone with proper judicial authorisation, if something goes wrong. However, it could be that some websites will try to get around that. That is why the amendment is good: they would have to comply. I do not know whether that is somewhere else in the regulations, but having it in the Bill would be a good thing.

Some people say, “How can you stay anonymous?”. The simple answer is that if you then wish to subscribe to the website and buy some of its product, and you freely give up your credit card, I am afraid that you will not be anonymous. However, that is your choice once you are in. The initial stage of just wanting to view the site should be anonymous, and we should reinforce that.

[Baroness Jones of Whitchurch]

My Lords, I echo many of the concerns raised by the noble Lord, Lord Paddick. We added our name to a similar amendment in Committee and there was a broad degree of support for the principles that were expressed. The amendment returns to the essential need to protect the identity of those who are over 18 and legitimately want to access pornographic sites without having their personal details compromised in the age verification process.

The noble Earl, Lord Erroll, has been very helpful in explaining how the privacy systems would work, using a two-stage process to prove someone’s age and then giving them an encrypted token to use on adult sites. We agree with this model and would like to see it widely adopted. It assumes that age verification would be carried out by a separate age verification provider who has the specific technical skills to carry out these checks securely. However, we also agree that technology is moving on apace and that it would be a mistake to be too prescriptive. We believe that a code of practice, as set out in the amendment, would deliver the protections while allowing that to happen.

That brings us to the draft guidance on the regulator, which the Government published last week and which addresses the issue of privacy. We believe that of all the parts of the draft guidance, the section on privacy is indeed a step forward. It puts the onus on the regulator to work with the Information Commissioner’s Office to ensure that systems are in place to check a user’s privacy while having regard to the Data Protection Act. While we welcome that, we would also like it to address the need for users to have a choice of provider. Again, that is something that we debated at an earlier stage.

In addition, we have a continuing concern that the only provision for data protection breaches is for the ICO to be informed, rather than necessarily for it to act. I hope that the Minister will be able to reassure us that, if there are such breaches, they will indeed be followed up by action.

I hope that the Minister will be able to reassure us on these points. However, we feel that progress is being made on this subject. Depending on what the Minister is able to say in response, it may well be that we will ask the noble Lord, Lord Paddick, not to press the issue at this time.

[Lord Ashton of Hyde]

My Lords, I thank the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones, and I thank the noble Earl, Lord Erroll, for his expertise in this area—age verification, I am talking about.

I have some sympathy with the noble Lord and the noble Baroness on this because we, too, have absolute desire for anonymity in these matters. So the Government have sympathy for the intention behind the amendments, but we feel that they go too far and that this amendment is therefore unnecessary. We have already made provisions to cover these concerns under government Amendment 25YQ, which provides that the Secretary of State may issue guidance to the regulator. I assure noble Lords that we approach this issue with the utmost seriousness. We have set out the draft guidance, which noble Lords have mentioned. It is of course draft guidance and, as we say at the beginning of it, we welcome comments—so perhaps some of the comments from today’s debate can be incorporated.

A person making pornographic material available on a commercial basis to persons in the United Kingdom must have an effective process in place to verify that a user is over 18. This age verification already takes place online, from the gambling industry to mobile phone content to purchasing age-protected goods. There are various ways to age-verify online, as the noble Earl explained, and, as the industry is developing rapidly, it is expected that new age verification technologies will develop over time.

Providers are innovating and providing choice to customers. We agree that the process of age verifying for adults should rightly be focused on the need to establish that the user is aged 18 or above, rather than seeking to identify the user. As I have said, age verification controls are already in place without the approval of the age verification providers. For example, licensed gambling sites are required to have age verification controls that are not subject to pre-approval by the regulator but must take account of data protection laws.

We recognise that pornography provides a unique challenge in this space, which is why we are ensuring that the measures in place are stronger than currently exist. As such, the draft guidance to the regulator—I am pleased that in this area at least the noble Baroness, Lady Jones, gave her qualified approval—sets out the detail of how this should be done. Rather than setting out a closed list of age verification arrangements, the regulator’s guidance should specify how it will assess in any given case that the requirements have been met.

The draft guidance, which was published last week, is clear that the process of age verifying for adults should be concerned only with the need to establish that the user is aged 18 or above, rather than seeking to identify the user. The privacy of adult users of pornographic sites must be maintained. We do not want the regulator to duplicate the role of the Information Commissioner’s Office, the UK’s independent body set up to uphold information rights. The draft guidance states:

“The process of age verifying for adults should be concerned only with the need to establish that the user is aged 18 or above, rather than seeking to identify the user. The privacy of adult users of pornographic sites should be maintained and the potential for fraud or misuse of personal data should be safeguarded … The role of the Regulator should be to focus on the ability of arrangements to verify whether someone is over 18 and should be assured that age verification arrangements will protect a user’s privacy”.


That is pretty clear, I think.

As also set out in our draft guidance, the age verification regulator should work with the ICO. The regulator should be clear in its guidance on the requirements that age verification services and online pornography providers will have regard to under data protection legislation and, furthermore, that a privacy-by-design approach should be taken, as recommended by the ICO.

It is right that we do not seek here to duplicate the existing legislative and regulatory framework, but we must ensure that they are built into the age verification process in a meaningful way. We have always been clear that adults should be able to access legal pornographic content and individuals should rightly be protected from unintended consequences when doing so. As I said, we have produced a draft of the Secretary of State’s guidance and are certainly happy to have further discussions ahead of the final version being laid.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

25YR: After Clause 26, insert the following new Clause—
“Code of practice for commercial social media platform providers on online abuse
(1) Within six months of the passing of this Act, the Secretary of State must publish a code of practice about the responsibilities of social media platform providers to protect children and young people from online abuse and bullying.(2) The Secretary of State may bring the code of practice into force by regulations made by statutory instrument.(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(3) The code of practice must include—(a) the overarching duty of care of internet service providers and social media platform providers to ensure the safety of a child or young person involved in any activity or interaction for which that service provider is responsible;(b) the obligation to inform the police with immediate effect if notified that content on social media sites contravene existing legislation;(c) the obligation to remove content with immediate effect if notified that posts on social media sites contravene existing legislation;(d) the obligation to have specific terms of use that prohibit cyber-bullying and provide a mechanism for complaints of cyber bullying to be received and for the offending content to be removed; and(e) their responsibility to work with education professionals, parents and charities to give young people the skills to use social media safely.(4) Commercial social media platform providers must comply with the code of practice, once it is in force.(5) The Secretary of State may from time to time revise and re-publish the code of practice. (6) The Secretary of State may bring into force a revised and re-published code of practice by regulations made by statutory instrument.(7) In this section—“commercial social media platform provider” means a person who operates on a commercial basis an internet site on which people can interact;“cyber-bullying” means material that has the effect of seriously threatening, intimidating, harassing or humiliating children and young people.”

[Baroness Jones of Whitchurch]

My Lords, I beg to move Amendment 25YR and support Amendment 33A in this group.

Our amendment requires the Secretary of State to publish, within six months of the Bill being passed, a code of practice for all social media sites obliging them to put in place mechanisms to prevent children from being abused and bullied online. In the context of the rest of Part 3, we have specifically focused the amendment on the protection of children and young people, although we would expect such a code to have a wider benefit for adults suffering abuse. The amendment would require both Houses to approve the code and, once in place, it would be a statutory requirement on social media sites to comply. Although the full detail of the code is not spelled out, it would include requirements to inform the police if advised of illegal posts, and to take them down with immediate effect. In addition, it would require social media sites to have terms of use to prevent cyberbullying and abuse, including clearly spelled-out mechanisms for taking down the offending material.

We believe that these measures will ensure, finally, that the social media companies begin to take their responsibilities seriously. Action is overdue, which is why we have inserted a relatively tight but achievable timetable—and we make no apologies for that.

We have rehearsed in Committee many of the arguments why this intervention is crucial. I will not repeat them all, but we believe that the case for action to rein in the social media sites is now compelling. The charity Childnet has reported that one in four teenagers suffered hate incidents online last year, and that figure continues to rise. The NSPCC has reported that two-thirds of young people want social media sites to do more to protect them, with exposure to hate messages, pro-anorexia sites, self-harm sites and cyberbullying all on the increase.

Girlguiding revealed in a survey last year that 20% of girls were sent unwanted pornographic films or images without their consent. When I met a delegation of Girl Guides last week, they described how the bombardment of sexualised images was creating huge body-confidence issues and normalising sexist behaviour in schools.

I could go on, but the point is that all these statistics are going in the wrong direction. There is no culture of safeguarding children’s safety and well-being online. As a result, children are being frightened, intimidated, bullied and coerced on social media sites.

Since our last debate in Committee, we have received further evidence of the failure of the social media sites to act when illegal material is brought to their attention. If anyone is in any doubt about the need for our amendment, they have only to recall the example of Facebook, which, on being informed by the BBC that obscene images of children were being posted on its site, failed to remove the vast majority of those posts and then had the audacity to report the BBC to the police when it was sent further examples for it to follow up. Similarly, at the Home Affairs Select Committee, Google’s vice-president admitted that it had allowed a video entitled “Jews admit to organising white genocide” to remain on its site despite admitting that it was anti-Semitic, deeply offensive and shocking. This latest evidence underlines why we feel that action is needed now.

When we debated this issue in Committee, the Minister gave what I felt to be a rather complacent response. He argued that a statutory code was unnecessary and that the onus should be on companies to develop their own in-house processes to deal with the issue. Of course, shortly after that, the Secretary of State decided that leaving it to the companies to sort out on their own was not really good enough after all, and that a new internet safety strategy would be launched, including round tables with the media companies and, as we have heard, a Green Paper in the summer. That is okay as far as it goes, but it does not go far enough. We believe that we have left it to the social media companies to change their behaviours on a voluntary basis for far too long. That is why our amendment has a timetable and a requirement for the eventual code to be placed on a statutory basis.

--- Later in debate ---

We are working on this now. As I said, it will be published in June. We will bring forward the implementation of proposals as quickly as possible thereafter. I hope that noble Lords, especially the noble Baronesses, Lady Jones and Lady Janke, are reassured that we are taking the necessary strides to keep children and young people safe online. I therefore ask the noble Baroness to withdraw the amendment.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the Minister. We support and agree with many of the initiatives that he has outlined. As has been said before, there are opportunities for us to participate in discussions on the Green Paper and the wider issues of internet safety. We welcome all those initiatives, but the list which the Minister gave very much puts the onus on parents, children and everyone else in society to behave well, be better educated and have the proper tools to navigate the internet safely. It did not put so much of an onus on the actual problem, which is that social media sites are encouraging and facilitating this bad behaviour.

Although we do not want to take anything away from the Government, there is still a major problem. The voluntary initiatives that we have so far required social media sites to take have not come up with the goods. The Minister said that things were getting better. I disagree; things are getting worse. We have heard examples from around the Chamber that children are feeling more intimidated and bullied; they are accessing suicide sites in a quite unacceptable way. Sites are not taking down this material when it is drawn to their attention. There continues to be a rather urgent challenge. Without wishing to overplay the Australian model, one can put systems in place to make this happen. It is not beyond their technical capacity to put the measures in place—they just need the proper encouragement. I do not want to take anything away from what the Government have said, but there is a level of urgency with this particular problem about social media sites.

The Minister also said that he had a problem with the wording of the amendment. I do not see what is wrong with an “overarching duty of care” for young people. It is all encompassing and I would hope that any responsible social media site would broadly welcome that initiative. He also said that it was not clear how the sites would make reference to the police. In the Australian system there is an e-safety commissioner through whom complaints are made. If the Government did not like our wording, I would have hoped that they would have come back with something better; we might have withdrawn our wording in favour of theirs if it achieved the same measure.

We still believe that social media sites will change their behaviour only when there is the very particular threat of a statutory obligation being placed on them at a set point in time. I am sorry to say that the Minister’s response has not been sufficient on this occasion, and I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

25YW: After Clause 27, insert the following new Clause—
“Report on this Part
(1) Within 18 months, but not before 12 months, of the coming into force of this Part the Secretary of State must produce a report on the impact and effectiveness of the regulatory framework provided for in this Part.(2) Before publishing this report, the Secretary of State must consult on the definitions used within this Part.(3) The report must be laid before each House of Parliament.”

[Baroness Jones of Whitchurch]

My Lords, I do not intend to reopen the debate but we were not reassured by what the Minister had to say at the time. Therefore, we wish to test the opinion of the House on this matter.

Digital Economy Bill

Baroness Jones of Whitchurch Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 29th March 2017 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, briefly, I very much support this amendment and above all salute the work of the noble Baroness, Lady Benjamin, for all she has done over many years in making the case for the production of more and very much better-quality television programmes for children, whether by the BBC or other programme-makers. It is very good to see the name of the Minister on this amendment and I hope I am not wrong that as a result the Government fully support it. I hope we shall hear that soon.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I congratulate the noble Baroness, Lady Benjamin, on her continuous hard work on this issue. We also added a name to the amendment in Committee and here today. I very much share in her delight and happiness that progress has finally been made. As the noble Baroness said, this is effectively an enabling amendment for Ofcom. I hope that it will not just sit on the statute book; we look now for action to follow it through. As the noble Baroness said, there is already sufficient evidence, which Ofcom has, of the huge decline and reduction in children’s TV. There is no need for a pause while Ofcom finds evidence as to whether it needs to act. The evidence is already there. I hope that when Ofcom comes to consider the new powers we are providing, it will feel able to act straightaway. I hope that the Minister can reassure us that she will encourage Ofcom to do just that, and that this will not just sit there as an enabling power but is something the Government will encourage Ofcom to act upon. Again, I look forward to the Minister’s response.

[Baroness Buscombe (Con)]

My Lords, Amendments 33ZZA and 35A concern the important issue of children’s television, which I know this House, rightly, feels strongly about. I thank the noble Baroness, Lady Benjamin, in particular for her passion and enthusiasm—and a great deal of energy—on this subject. I also thank the noble Baroness, Lady Howe of Idlicote, who is always so strong on these issues and has been for many years.

The provision of a range of high-quality children’s programming must be a priority for the UK’s public service broadcasting system. The BBC remains a particularly strong provider of UK-originated children’s content. The new BBC charter requires the BBC to support learning for children, and the framework agreement makes it clear that Ofcom must have particular regard to setting requirements for key public service genres such as children’s programming.

However, the commercial public service broadcasters —ITV, Channel 4 and Channel 5—have collectively been doing less and less since the Labour Government’s removal of children’s quotas in the Communications Act 2003. By 2014 the BBC accounted for 97% of total spending by PSB channels on children’s programmes. Clearly, this does not suggest a healthy market.

The Government share the view that this problem should be tackled, and we are committed to supporting the provision and plurality of children’s content to meet young audiences’ needs. To do this, the Government have extended the tax relief for animation and high-end TV programmes to UK children’s programmes. We have also consulted on a pilot contestable fund for underserved public service content, with children’s content as a potential area of focus. The consultation closed in February and we will publish our response in due course.

The Government hope that with this government support, the problem that the noble Baroness has identified over the past weeks and months will be resolved. Furthermore, we support the proposal to give Ofcom the power to look at this issue and, as a backstop, to introduce quotas on the commercial PSBs if it deems it necessary. The noble Baroness’s Amendment 33ZZA gives Ofcom the power to look at the provision of children’s content and impose quotas only if it believes there is inadequate provision. But, crucially, it does this in a way that works with PSBs’ commercial realities, and younger audiences’ needs.

As many parents will know, children now consume content on an increasing range of platforms, not just on the traditional PSB channels. Indeed, Ofcom has found that children watch a quarter less broadcast TV than they did five years ago, and that more than a quarter of children watch free on-demand services in a typical week. As a result, in giving Ofcom the power to consider imposing children’s quotas on the main PSB channels via their broadcasting licences, the amendment requires Ofcom to consider the provision of content across a PSB’s free-to-view UK portfolio, not just on its main channel. This means that Ofcom should consider children’s programming on a PSB’s main channel and its other UK free-to-view channels equally when assessing whether a quota may be necessary. Ofcom will also be able to take into account content on PSBs’ on-demand players.

Indeed, while the BBC is rightly considered to be the market leader in children’s TV content, its output is shown on its dedicated children’s channels: CBBC and CBeebies. Therefore, while the amendment does not apply to the BBC, we think it is right that any assessment of children’s TV provision by the commercial public service broadcasters is likewise able to take into account the provision on not only the main channels but their wider services, reflecting the changing nature of TV consumption for our young people and changing TV market dynamics.

Crucially, Ofcom will also be able to consider whichever criteria it deems appropriate in coming to a view on the provision of children’s content. Those criteria will be drawn up, where Ofcom deems them necessary, following public consultation. For example, Ofcom may choose to set as one of its criteria that an appropriate level of new UK children’s programming is available across the PSBs and their related services. This would help drive UK investment and ensure that younger audiences see themselves reflected in the programming that they watch.

It is the policy intention that Amendment 33ZZA will also work with Section 3 of the Broadcasting Act 1990. Under that section, Ofcom must allow a PSB,

“a reasonable opportunity of making representations”,

about a proposed variation of its broadcasting licence. It is also the policy intention that the amendment requires Ofcom to set the same licence condition in each of the Channel 3 regional licences to ensure that the regime does not impose disproportionate burdens on ITV.

We will gladly support amendments that protect and enhance the UK’s public service broadcasting system. That commitment from the Government will echo through this evening’s debate, with support for the BBC and commitments on listed events and children’s television. Again, I thank the noble Baroness for her vital contributions on this subject. The Government will support her amendments.

The noble Baroness asked about timings and content. It is very important that we leave the timings up to Ofcom. The content criteria are also a matter for Ofcom, subject to consultation, as I think I have already made clear. I agree with the noble Baroness, Lady Jones, that we hope that this will not just sit on the statute book. We hope that Ofcom has heard the message loud and clear but the onus is on Ofcom to take this further.

I should also say that Amendment 35A provides for commencement so that the Government cannot block Ofcom from acting. On that basis, we are pleased to accept Amendment 33ZZA.