Audiovisual Media Services (Amendment) Regulations 2021

Lord Clement-Jones Excerpts

Tuesday 13th April 2021 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, it is ironic that we keep coming back to this set of audio-visual media services regulations, yet this regime is only ephemeral and rather limited in scope. Schedule 15A was inserted only in November, as the Minister said, and is destined to be repealed, we hope, within a short space of time. This is really a dry run, as the Minister accepted, for what we are expecting to be the much wider scope of the online harms legislation, due, we hope, shortly after the Queen’s Speech, at least in draft. That is why we need to kick the tyres pretty hard at this stage on the way in which Ofcom plans to regulate and on the provisions of this SI.

As my noble friend Lord Foster asked, how many on-demand and VSP services are now covered, or have been since 6 April? He also asked what the Government intend as regards VSPs not based in the UK when the new online harms legislation is introduced. The Minister used the phrase “wider ambit”. Is that a commitment? We can, of course, talk about the provisions of the regulations themselves, the duty of co-operation and so on. She referred to the findings of the Secondary Legislation Scrutiny Committee and its view that the SI created some uncertainty.

The Minister was not wholly convincing in pushing back on the fact that the powers are essentially informal. There are not duties that require formal mechanisms of co-operation, least of all those belonging to the association of regulators mentioned by my noble friend Lord Foster. Perhaps the Minister can also talk about the consequences of the “ambulatory” definition of “European works”. There seems to be some confusion about the way in which that will operate. It is important to have transparency between the regulators and a commitment by the Government to make sure that our legislation is on all fours, at least during the interim period and probably for some time thereafter. I agree with the noble Baroness, Lady Wheatcroft, about the concerns over the timing of the introduction of the online harms legislation.

We should all be interested today in the substance of the Ofcom consultation on the video-sharing platform guidance. Of course, we are all concerned about the question of freedom of expression, but Ofcom in its consultation said

“The VSP Regime does not set standards for content which providers should meet”.


Is that going to be the online harms approach? I very much hope that we will go further and adopt the risk assessment and management approach discussed later in the VSP consultation by Ofcom. That would fulfil what my noble friend Lord McNally referred to as the Puttnam criteria.

The noble Baroness, Lady McIntosh, mentioned age verification. Ofcom said:

“For VSPs which specialise in, or have a high prevalence of pornography, we think robust and privacy preserving forms of age verification are key to providing necessary protections for under-18s”.


I entirely agree with that, and with what the noble Lord, Lord Blunkett, had to say. But will this be mandatory or a matter of judgment? What sanctions will there be if age verification is not introduced?

It is evident from the answer to the recent Written Question from my noble friend Lady Grender that user-generated content will be more heavily regulated than commercial pornography sites which do not carry user-generated content. Is that the Government’s settled approach? If so, they will have a fight on their hands, especially in the light of BBFC research which showed that parents agreed with a statement that there should be robust age-verification controls.

I could go through age ratings and the DRCF workplan mentioned by my noble friend Lord McNally. I strongly support the proposal for a centre of excellence. The dispute resolution mechanisms discussion is also of great interest, and I declare an interest as chair of the board of Ombudsman Services Ltd. The Government have said that they do

“not intend to establish an independent resolution mechanism”.

Ofcom clearly considers it important to have independence, and I hope that the Government will have changed their mind by the time we come to the online harms legislation. Furthermore, Ofcom’s statements are very cogent about media literacy, but where is the Government’s strategy?

Finally, are Ofcom’s enforcement guidelines fit for purpose in regulating VSPs? What kind of assessment has been made of them and what assurance can the Government give? I have great confidence in the way in which Ofcom is steering its activities towards preparing for online harms regulation. I am not so sure about the Government, however, given the regulatory framework and the policies that they are adopting.