Digital Economy Bill

Debate between Earl of Erroll and Lord Paddick

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

[Lord Paddick]

Forgive me if I misunderstood the noble Lord. I thought he was using that as an argument for why that sort of activity should not be allowed to be seen by anyone, but I could be wrong.

[The Earl of Erroll]

This may assist the noble Lord and the rest of the House—

[The Earl of Erroll]

Very quickly, for clarification, the problem is that some material is regulated by ATVOD, some by the BBFC and some by Ofcom. That is where the noble Lord’s problems are coming from when he talks about “prohibited material”.

[Lord Paddick]

I am grateful for the noble Earl’s intervention, but for clarity I will stick to what I was saying. The noble Lord, Lord Alton of Liverpool, talked about the harm test that was introduced in 1994. I challenge anyone to suggest that some of the things that are not allowed in R18 videos cause harm to anyone. They might be unpleasant or, in some people’s eyes, morally reprehensible, but certainly there are things that are not allowed because of the definition of prohibited material but cause harm to no one. That is an illustration, without going into specific gory details about what is and what is not allowed. That is why we are in the mess that we are in.

Clearly the question of what is and is not acceptable pornography needs to be reviewed, and my understanding is that that is what the Minister has said will happen as part of an online safety review. Were the House to divide, we on these Benches would prefer Amendment 25YW from the Labour Front Bench, under which a review would take place but without specifying what the outcome of that review should be—that is, a reversion to the discredited definition of prohibited material.

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[Lord Paddick]

My Lords, my noble friend Lord Clement-Jones and I have Amendment 25N in this group. It is a probing amendment to test whether a “sufficiently independent” appeal mechanism against a decision of the age verification regulator is good enough. Government Amendment 25M, regarding appeals against a decision of the age verification regulator, describes the arrangements as “sufficiently” independent of the age verification regulator. Our amendment would remove the word “sufficiently” so that the amendment read: “any person hearing an appeal under those arrangements will be independent of the age-verification regulator”.

The British Board of Film Classification currently operates its own appeal mechanism against its decisions either to classify a film or DVD with a particular age classification or to refuse to grant a classification at all. That appeal mechanism is operated by the BBFC but by a panel that is independent of those who made the initial classification. To that extent, it is not wholly independent of the BBFC but it is arguably sufficiently independent to command the confidence of those seeking classification for their films and DVDs—that is, the industry can have confidence in the process.

Although this works well in practice with the proposed age regulation regulator, what if that regulator changes? This “sufficiently” independent arrangement appears to be designed around the proposed age verification regulator, the British Board of Film Classification, in a counterintuitive way—that is, not having an appeal mechanism that is totally or completely independent seems counterintuitive—because of the reputation that the BBFC has, which might not be the case were the age verification regulator to change. The wording “sufficiently independent” appears to be BBFC-specific in a way that might not be acceptable were any other regulator to be chosen. Perhaps the Minister can reassure the House on that point.

[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.

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[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.

[The Earl of Erroll]

My Lords, this is an important point. Without enforcement, nothing will work. If you do not enforce age verification, no one will bother with it. For exactly the same reasons as the noble Lord, Lord Paddick, gave, I think that the notice and take-down—the blocking—is the only thing that will work. Fines will not work; it is probably a waste of time even trying them. The only thing that might work is to ask the credit card companies not to take payments for those sites, because they like to observe the law. I am concerned that the BBFC will not have resources to do this properly, but even if it goes elsewhere the BBFC should still be able to notify ISPs to block sites. That bit must certainly be enforced.

Digital Economy Bill

Debate between Earl of Erroll and Lord Paddick

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

[Lord Paddick]

The amendment is in my name and that of my noble friend Lord Clement-Jones and the noble Baroness, Lady Jones of Whitchurch. I have to say that it is only because we were quicker on the draw that I am leading on this amendment rather than the noble Baroness.

As I have previously alluded to, we believe that age verification is not sufficient protection for children on the internet. It can easily be circumvented, and it would be very difficult to place age verification on such platforms as Twitter and Tumblr. In relying on this mechanism, there is a danger of diverting attention away from other important and effective methods of addressing the issue of children accessing adult material online. Despite our misgivings, we believe that everything should be done to protect the privacy of those who have their age verified to enable them to access adult material on the internet. I am grateful to the Open Rights Group for its briefing and suggested amendment on this issue, which is the wording we have used for our amendment.

Age verification systems almost inevitably involve creating databases of those who are accessing adult material. It is completely lawful for those who wish to look at adult material to access these websites, but it is a sensitive area and many will be wary about or even deterred from accessing completely legal websites as a result. Security experts agree that unauthorised hacking of databases is almost inevitable, and the advice to organisations is to prepare contingency plans for when rather than if their databases are accessed by those without authority to do so. The consequences of breaching databases containing sensitive personal data can perhaps be most starkly illustrated by the public exposé of the personal details of those who were members of Ashley Madison, which reportedly resulted in two suicides. The risk to privacy can be reduced if the age verification regulator approves minimum standards for age verification providers. These are set out in the amendment.

The amendment suggests that the age verification regulator publish a code of practice, approved by the Secretary of State and laid before Parliament. The code of practice should ensure that everything possible is done to protect the privacy of users and to allow them to choose which age verification system they trust with their sensitive personal information. For example, some websites provide a service that enables users to prove their identity online, including their age, for purposes unconnected with access to adult material but which could also be used for that purpose. The full extent of the provisions are set out in the amendment, and the evidence in support of the amendment is set out in the Open Rights Group’s updated briefing on the Bill.

The Constitution Committee addressed this issue in its 7th report of 2016-17:

“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. Our concern is exacerbated by the fact that, as the Bill currently stands, the guidance and guidelines will come into effect without any parliamentary scrutiny at all. 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”.


That is exactly what this amendment attempts to do. I beg to move.

[The Earl of Erroll]

My Lords, I want to say a few words because I have been working on the issue of age verification for a long time. I became interested in it when it became apparent a couple of years ago that it was going to come to the top of the agenda. For the last year or so, the Digital Policy Alliance, which I chair, has been working with the British Standards Institution to produce a publicly available specification—PAS 1296—exactly on this issue. Its whole point is to enable anonymised verification of the attribute of your age. People have said that you would have to give the information to the adult content site, the porn site, but you do not necessarily need to.

There are two stages: when the child, or the adult, first arrives at the site; and, if they are allowed into the site, what they then do. At the point when they come to the front page of the site, where they should be asked to prove their age, there should be an option—and this is the point about anonymity—that allows them to bounce off, with a token, to an age verifier. I have on my smartphone, for instance, one from Yoti. I can identify myself to Yoti; it knows about me and can send an encrypted token back to the website, which does not contain any identity information at all—purely the fact that I am over 18. If the regulator later needs to unravel the token because it appears that rules have been breached, it is possible to present the token and start unravelling it—but only with proper powers. The point is that a hacker cannot find out who presented that token. So it is possible now to do what is necessary.

That answers the point made by the noble Lord, Lord Maxton. The problem with an identity card is that it will identify you. If you gave your identity to one of these websites and it happened to be hacked, like Ashley Madison, and if you were a Cabinet Minister—or even like most of us here, actually—your career would probably be in ruins. So I think it is essential that people be permitted anonymity. That is why, I am afraid, I am not in favour of the identity card method. There are other similar ways of doing the same thing—