Digital Economy

Liam Byrne Excerpts

Monday 17th December 2018 Commons Chamber

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

I will be as brief as I can, because I know that the whole House will want to hear from my hon. Friend the Member for Rotherham (Sarah Champion), given the level of expertise she brings to this debate.

The Minister will be pleased that I am able to start on a note of cross-party consensus; we do not have many of those at the moment. I think we can agree across this House that this is an important debate because it gives us the opportunity to say, when it comes to legislation in this territory, that we have rights to honour. We have rights to honour because we have duties to honour—duties to our children. As Baroness Kidron in another place has put it so well, “Children are children until they reach the age of maturity, not until they pick up a smartphone”.

If those duties bite on us, as legislators and indeed as parents, those duties should also bite on companies and indeed on social media companies. These measures go a little distance towards imposing some of those duties on commercial providers. They do not go far enough, and I will explain why there are shortcomings. However, they come so late and are needed so urgently that we will not oppose them or divide the House this evening.

These measures are a stopgap. I hope the Minister will at some point during these proceedings explain just how long this stopgap is expected to last. At the moment, we have the situation, as the Information Commissioner has put it, that the internet has become something of a “wild west”. As the Minister has been candid enough to admit in her really quite helpful explanatory remarks this evening, these regulations may touch on the problem, but they absolutely do not solve it. We need a very different regulatory approach to the online harms we are seeking to police.

In debating the shortcomings of these regulations, I hope we are able to help the Minister and the Secretary of State, who is good enough to be on the Front Bench tonight, to get two crucial reforms right. We asked for these reforms in the Data Protection Bill. They are the age-appropriate design code, which was promised under the Data Protection Bill, and the internet safety strategy, which I know the Secretary of State is hoping to bring forward as soon as he can get his civil servants back from no-deal planning and get them back on to the Department’s important business.

I hope the Minister is able to set out for us how long she expects this stopgap to last, and I want to flag up to her the 10 obvious deficiencies that leap out from the measures and the explanatory notes to them. I will rattle through them fairly quickly, in the interests of time.

The first problem is the very strange conclusion in the regulations of a de minimis of content at which the regulator will deem it necessary to trigger a safety wall of age-verification software. It is really not clear why a third was chosen. I appreciate that the Minister has to start from somewhere, but there are obvious flaws in this plan, not least providers simply filling their sites with virtuous content in order to get around the regulations. It strikes me we can fully anticipate that even at this stage of the legislation.

As has been highlighted by a number of hon. Members, some of whom are not now in their place, these regulations do not bite on social media firms. This is lunacy. This is surely one of the most dangerous areas in which our children are exposed to these kinds of online harms, so bringing forward a set of measures without explicit reference to their non-applicability to social media firms seems to me to be a shortcoming. As the House will know, the reason why this is such a problem is that when we took the Data Protection Bill through this place, we exercised a derogation under European law that allowed us to deem that children were basically unfettered on social media platforms from the age of 14, not 16 as other European countries insist. Debating the right protections for our children on social media platforms is extremely important, and hon. Members are absolutely right to clock that the orders do not touch on that important arena.

The second problem is the odd definition of “commercial basis” that is used as the trigger for requiring age-verification systems. We have had a useful exchange about business models that entice users by offering free content—the money is made either by advertising or through premium content. The orders and the explanatory notes are not terribly clear about the sins that will be allowed through the net because of that odd definition.

The third problem, which was debated in the other place, is the challenge of what definition of “obscene material” to use. At least a couple of definitions are knocking around different bits of legislation and it is not clear that the orders are all-encompassing in the definitions used.

That brings us to the fourth issue, which was championed by Baroness Howe in the other place. The definitions that have been used create a couple of important new gaps. I am grateful for the briefing circulated by Christian Action Research and Education, which has set out the challenge in important ways. The Government have changed what the BBFC can ask internet service providers to block from so-called “prohibited material” to the much narrower definition of “extreme pornography”. In so doing, they exclude the power to ask ISPs to block non-photographic, animated child abuse images. Those are illegal to possess under section 62 of the Coroners and Justice Act 2009 but, at the moment, they are outwith the protections of the orders. If those images are located outside the UK, they are not within the remit of the Internet Watch Foundation. Given the number of such images that we know are available, that is a serious shortcoming in the orders. It is a great concern to the House that neither the Internet Watch Foundation nor the BBFC has the power to deal with those images.

That brings us to the fifth issue. Just as significant is another challenge. Because of the same use of definitions, it is not possible to prohibit violent pornography that is illegal under the Video Recordings Act 1984. I understand that Baroness Howe has a Bill in the other place to step on and do away with these problems, and perhaps at some point we might learn whether the Minister is minded to support that legislation. I am not sure whether the Minister gets a chance to wind up under the rules of tonight’s debate, but she might want to intervene if a box note is forthcoming.

The sixth problem is that the orders give power to what is essentially a private company. When the orders were passed to give the BBFC the role we are debating this evening, the Opposition raised significant concerns about whether, despite its extensive experience, the measures constitute mission creep for the BBFC. The Opposition and other hon. Members have serious doubts about whether it is resourced enough to do the job. This is a new departure in its business, and it does not have a track record. It does not have a royal charter, and it cannot de facto be assumed to be operating in the common good. The basic challenge hon. Members have is this: who will watch the watchmen? How will we ensure that that private organisation, which is blessed by us with statutory powers and statutory regulatory oversight, executes the task we give it effectively? We cannot rely on its mission. I welcome the fact that the Minister says that the Secretary of State will come back to the House in 12 to 18 months with a progress report, but that is rather a long time in the future if the BBFC is found to be seriously failing in the execution of its duties at a much earlier stage.

The seventh problem is that there is not an exhaustive list of age-verification solutions. The Minister will say that the technology moves on and that we need to preserve a degree of flexibility to allow the legislation to keep up to date but, none the less, the lack of specificity worries me. It worries me that the BBFC is not yet able to insist on minimal regulations and solutions for age-verification systems. The eighth problem is that the guidance on what is appropriate in systems is vague.

When we take those eight objections together, we see that the orders are half-measures. The reality is that, this year, we have learned about and debated a great many different approaches to clamping down on the harms that may hurt our children online. A much better approach to the problem would be to use a tried and tested concept in health and safety legislation: the duty of care principle, which has been around in English law since at least the early 1970s. That approach would require companies and organisations to take specific steps to understand the potential harms they are causing to their consumers, and then to take appropriate steps to ameliorate those harms.

If I went to London tonight and built myself an arena and filled it with people, I would rightly be asked to observe all kinds of health and safety measures to ensure that that the people were safe and sound. If I build an online arena, I am under no such obligations and can pretty much do what I want. If I ensure that the arena is a social media platform, I will not be hampered in any way by the orders.

The duty of care principle is a much better approach, but it needs a different kind of regulator. We currently have something like 13 different regulators overseeing different aspects of internet safety, internet regulation, content regulation and financial processing regulation online. That is far too many. That landscape is much too complicated, and those regulators do not have sufficient powers to implement the safeguards against online harm that we as legislators would like. I am not proposing that we reduce those 13 regulators to one this evening, but I am saying that 13 needs to come down to something closer to one. The House needs to ensure that that regulator has the right power to enforce proper duty of care regulation.

The Minister spoke at great length and I am grateful that she took a wide variety of interventions. The orders are important and necessary, and an advance on where we are today, but if we are to get the future right, hon. Members on both sides of the House need to be candid and honest, and work together in identifying the shortcomings of the current approach, which was conceived and constructed in legislation that is a couple of years old. We need to be honest and open about its shortcomings so that we can put in place a better solution when we have the White Paper and, I hope, when the Secretary of State brings the Bill to the House.

[Several hon. Members rose—]

--- Later in debate ---

[Sarah Champion (Rotherham) (Lab)]

I will rattle through some points, because I would like them to be on the record for the Minister and the Secretary of State.

On the guidance on the ancillary service providers, under section 15(1)(d) of the Digital Economy Act 2017 and annex one of the guidance, pornography material is defined as a video work or material that has been issued an 18 certificate and that

“it is reasonable to assume from its nature was produced solely or principally for the purposes of sexual arousal”.

This is a neutral definition that fails to recognise that porn is almost always coercive, usually violent, aggressive and degrading, and is gendered. It is also almost always men doing it to women. Other countries are broad in their definition of pornography, to capture that aspect of it. In Spain, it is defined as “pornography, gender violence, mistreatment”, and in Poland as very strong and explicit violence, racist comments, bad language and erotic scenes. Does the Minister agree that our definition could be amended to acknowledge that pornography represents gendered violence, misogyny and abuse?

[Liam Byrne]

Am I right that the point my hon. Friend wants to register this evening is that there is much to learn from other countries?

[Sarah Champion]

That is absolutely right, and that becomes more apparent as we go forward. This legislation is very UK-based; pornography, of course, is international.

Minister, I am very concerned about the ability of the BBFC to compel ancillary service providers and payment-service providers to block access to non-compliant pornography services, as described under sections 21 and 23 of the Digital Economy Act. What power does the BBFC have to force companies to comply with its enforcement measures? What happens if credit card companies, banks or advertising agencies refuse to comply? I know of pornographic sites that accept supermarket points instead of cash to get around such legislation from other countries. What assessment has the Minister made of the likelihood of opportunistic websites being established to circumvent UK legislation and the child protection risks that follow? It is unclear how the BBFC will appraise sites and what review mechanisms it will put in place to judge whether the scheme is effective in practice.

Under part 1, paragraph 10 of the guidance:

“The BBFC will report annually to the Secretary of State”.

Will the Minister commit to an interim review after six months from the implementation date, so that we can see whether this is working? Under part 1, paragraph 11 of the guidance,

“the BBFC will…carry out research… into the effectiveness of the regime”

with a view to child protection “from time to time”. As that is the very purpose of the legislation, does the Minister agree that this should occur at least every two years? Under part 2, paragraph 7 of the guidance,

“the BBFC will…specify a prompt timeframe for compliance”.

However, there is no detail on what this timeframe is. It could be a week—it might be a year. Will the Minister please explain the timetable for enforcement?

The guidance also details the enforcement measures available to the BBFC in the case of a non-compliant provider. I broadly welcome those enforcement measures, but I am concerned about the ability of the BBFC to take action. Will the Minister tell us which body will be effectively enforcing these punishments? Will it be the Department for Digital, Culture, Media and Sport or the Home Office? Will the Minister put on the record the additional resources being committed both to the BBFC and whichever Government agent is meant to enforce the legislation?

Turning to the BBFC guidance on age-verification arrangements, I want to register my concerns about the standards laid out on what constitutes sufficient age verification from providers. Section 3, paragraph 5 mentions

“an effective control mechanism at the point of registration or access by the end user which verifies that the user is aged 18 or over at the point of registration or access”.

That is very vague and could in practice mean any number of methods, many of which are yet to be effectively put to the test and some of which may jeopardise the security of personal data. That raises concerns about the robustness of the whole scheme, so will the Minister detail how she plans to ensure that the qualifying criteria are not so lax as to be useless?

Part 4, paragraph 3a states that

“age-verification systems must be designed with data protection in mind—ensuring users’ privacy is protected by default”.

Has the Minister also made an assessment of the safeguarding implications for the personal data of children, some of whom may attempt to falsify their age to access pornographic imagery? Following the data hack of Ashley Madison, that has concerning implications for adults and children alike. While age verification certainly is not a silver bullet, as an idea it does have a place in a regulatory child protection framework. However, we need to ensure that that framework is as robust as it can be. Guidelines for websites that host pornographic material must be clear, so that the policy can be rigorously applied and potential loopholes are closed.

I also want to say that this has to work across Government. At the moment, we are still waiting for the Department for Education to bring forward the guidance on relationship and sex education. Unless we prevent, we cannot—