Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020

Lord Bassam of Brighton Excerpts

Friday 27th November 2020 Lords Chamber

[Lord Bassam of Brighton (Lab) [V]]

My Lords, colleagues across the House have posed a number of very awkward questions for the Minister to answer, and I am going to add one or two more of my own. It is worth making a few observations that perhaps take us to the point where we can see an improvement in the patchwork of regulation that we are left with.

As we have seen with a number of recent DCMS instruments, our ability to effectively regulate digital activity will be restricted without broader reciprocal arrangements with the EU and others, as my noble friend Lord Blunkett admirably explained and set out in his comments, which were echoed by the noble Lord, Lord Moynihan, and others across the House.

This SI provides some certainty on matters of jurisdiction after the transition period, which empowers Ofcom to regulate video-sharing platforms where their primary establishment is in the UK—but it does rather leave it at that. It is important today to remind ourselves that the Secondary Legislation Scrutiny Committee said that:

“It is important that the Government will adhere to the legislative timetable provided by the Department, so that the current regulatory gap, which leaves UK users potentially exposed to online harm, can be closed.”


That is a pretty damning observation, and we should be worried by that. We need greater certainty for the sector, and greater certainty as legislators and regulators. Can we be assured that this regulatory gap will be closed pronto? We need the online harms legislation to provide the certainty that we all crave.

VSPs that operate in the UK but are established in other countries may fall under Ofcom’s jurisdiction, but not, as others have observed, if that firm has a presence in the EEA. In that case, power will reside with the European regulator and we will, after the end of this year, be shut out from that—and we need influence.

Paragraph 2.18 of the Explanatory Memorandum notes the particular challenges around TikTok, which is based in China and has no physical presence in either the UK or EEA, and which is therefore currently in a regulatory void. This concern, as others have observed, is covered by the 32nd report of the SLSC. Paragraph 2.19 of the memorandum acknowledges that

“there will only be a small number of VSPs in Ofcom’s jurisdiction.”

Can the Minister estimate how many? Is she confident that Ofcom has the regulatory tools needed?

We find ourselves in a bizarre holding pattern where we will have to make do with these arrangements between the end of the transition period and the emergence of the long-awaited online harms Bill. Can the Minister provide any new information on when that legislation is expected? Will it be subject to pre-legislative scrutiny, as has been suggested in some quarters, and if so can she confirm what that will look like? It would be very helpful to this House and to the other place if we had that opportunity.

We hope we will finally have some news on a deal with the EU in coming days, if one ever gets over the line. However, if ever an area of law needed to be put in place quickly to cover the gaps that exist, this is it, and we need strong arrangements on digital regulation if we are not to be at the mercy of the market. That said, of course we support this instrument, which is making a contribution to providing an urgently needed regulatory regime.