Online Safety Bill [HL]

Lord McColl of Dulwich Excerpts

Friday 11th December 2015 Lords Chamber

4: Clause 8, page 5, line 5, after “be” insert “—
(a) ”

[Lord McColl of Dulwich (Con)]

My Lords, I am very pleased to speak in support of Amendments 4 to 7 from the noble Baroness, Lady Howe, to which my name is attached. No one can read the very important 2014 ATVOD report and not be convinced about the child safety imperative to provide some kind of regulatory framework for dealing with online pornography, which is projected into this country mainly from websites located abroad.

As the noble Baroness, Lady Howe, will tell us, that report demonstrated that 23 out of the 25 pornographic websites most frequently visited by people in this country are located outside of the UK. To this end, I am of course pleased that this year’s Conservative manifesto committed to introducing age-verification checks on all pornographic sites, and I look forward to hearing from the Minister when further details about this proposal will be published. We had been promised a consultation before the end of the year.

The Government are exceptionally well placed to rise to this challenge, having recently introduced the Gambling (Licensing and Advertising) Act 2014 to regulate online gambling websites based beyond the United Kingdom. In the context of gambling, if someone does not have a licence and they seek to conduct transactions with people in the UK, they operate illegally, so financial transaction providers are happy to refuse to facilitate transactions.

ATVOD, however, reports that the same is not true of pornographic websites that service UK customers from other countries. At the moment, such sites break no law. Indeed, the financial transaction providers have pointed out that, if they refuse to conduct illegal transactions between such sites and people in the UK, they would be the ones likely to be taken to court. This difficulty, however, would not obtain if we introduced a licensing system similar to that pertaining to online gambling and the provider in question did not have a licence. The simple proposal in this Bill is that the providers of online pornography from outside the UK must get a licence, a condition of which would be the provision of robust age verification. I hope that the Government will adopt this Bill as it presents a timely means of fulfilling their manifesto pledge.

The Delegated Powers and Regulatory Reform Committee report took the view that it would be better if the body that heard appeals against decisions not to grant a licence or to revoke an existing licence, were not the same body that awarded the licences. The noble Baroness, Lady Howe, through these amendments, has made provision for the designation of a separate body to hear appeals. The amendments, which the noble Baroness wisely asked the noble and learned Lord, Lord Mackay of Clashfern, to assess, clearly have that effect. I hope the Committee will support them.

[Baroness Howe of Idlicote]

My Lords, I apologise for the delay in finding my papers, particularly to the noble Lord, Lord McColl, who very kindly stepped in.

Amendments 4 to 7 form the second group of amendments that I tabled in response to the Delegated Powers and Regulatory Reform Committee report published on 20 July. They relate to my proposal under Clause 8 to introduce a licensing scheme for foreign pornographic websites in the absence of any robust regulation of these websites.

The Committee may remember that ATVOD, the Authority for Television on Demand, which I am sad to say will cease to exist at the end of the month, published a report in 2014 that found that 23 of the top 25 adult websites visited by UK internet users provide instant, free and unrestricted access to hardcore pornographic videos, some of which would not be available on a British high street.

ATVOD’s report explains that it has encouraged the UK payments industry—credit card companies, Paypal and so forth—not to process transactions involving websites showing hardcore pornography that is presented without robust age verification safety checks. However, it also explains that the transaction providers are unwilling to do so because,

“the absence of clear case law on the issue precludes such an initiative”.

In short, unless the provider of the material is breaking a law, a financial transaction provider could be taken to court for failing to process the transaction. Setting up a licensing scheme, however, as proposed by Clause 8, would set up clear case law. An organisation would have a licence, or it would not. If the organisation did not have a licence, there would be no legal obstacles if a financial transaction provider was minded not to process the transaction—something that Clause 10 crucially mandates.

Clause 8 would provide a regulatory framework to ensure that these websites are not available to children. Clause 9 makes it an offence not to have a licence and Clause 10 provides a means of ensuring that payments to unlicensed websites would cease—a matter I shall come back to when I speak on Amendments 8 to 13.

The committee was concerned that appeals against decisions on not granting a licence or having a licence revoked would be heard by the licensing body. That is a genuine concern, so I tabled Amendments 4 to 7 to ensure that an independent body be able to review any appeals.

Amendments 4 and 5 ensure that the powers under Clause 8(1) allow the Secretary of State to designate both a licensing body and a separate independent appeals body. Amendments 6 and 7 ensure that the Secretary of State is not able to designate a licensing body without knowing that the independent body has adequate arrangements for appeals. As I have already said, I sought the counsel of the noble and learned Lord, Lord Mackay of Clashfern, about whether these amendments deal with the problems highlighted by the committee and he assured me that they do. I beg to move.

--- Later in debate ---

[Baroness Shields]

I thank all noble Lords for their contributions, and I state one more time that there is no ambiguity about the Government’s commitment to launch the consultation shortly after the new year, and to provide for a robust age verification system to ensure that no one under the age of 18 can access pornographic material in the UK. It is a process that has been going on. We have been seeking advice from experts since the manifesto commitment was announced and we are consulting early in the new year. We are 100% committed to that.

I thank the noble Earl, Lord Erroll, for his contributions and for his extraordinary work in leading the development of solutions that will in fact achieve our goal. Many elements of the Bill are incredibly well thought-out and well intentioned, and they will be taken on board in the resulting legislative approach that we take in the new year. This is about timing. This clause requires that the Secretary of State must identify a licensing authority for non UK-based pornographic services, and the noble Baroness’s amendment to the clause specifies that the Secretary of State needs a second independent body to conduct appeals. It is a very good suggestion, but it is a bit premature until we finish the consultation.

Regarding the Ofcom/ATVOD role, there is some confusion about the function of ATVOD continuing, but following an Ofcom review, it was publicly announced in October that from January next year Ofcom will take sole responsibility for regulating video on-demand programme services. As a result, it will not continue its co-regulatory arrangement with ATVOD. Let us be clear on this: it is continuing with the function and the obligation of ATVOD, but that is being brought into the Ofcom portfolio.

[Lord McColl of Dulwich]

My Lords, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.