Digital Economy Bill

Lord McColl of Dulwich Excerpts

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

[Lord Gordon of Strathblane (Lab)]

My Lords, I make the same point I made in Committee, which is that offline and online should be aligned. I am relatively agnostic as to exactly where the line is drawn, but it should be consistent across offline and online. Otherwise, I invite the Minister to confirm that under the government amendments, material it is prohibited to see offline, in that it is refused any form of certification by the BBFC, will now be available online. If the answer is that it will not, I cannot see why the Government do not maintain the original position in the Bill. If, on the other hand, it will be available online, does the Minister recognise that—unfortunately and, I fully recognise, unintentionally—the Government may subvert the efficacy of the offline legislation? The internet is recognised not merely as a method of disseminating information. People frequently do not buy music in the form of CDs; they download it. They do not buy videos; they download them. If we do not do something about this, we will unintentionally subvert the offline legislation.

[Lord McColl of Dulwich (Con)]

My Lords, I rise to support Amendment 25YD. I find myself very surprised by Amendments 25H, 25W and 25YC. I appreciate that in some technical sense these amendments may not jeopardise the principle that what is illegal offline is also illegal online, but as a matter of practice and enforcement, they most certainly do jeopardise the spirit of the principle.

The Bill is very clear that the age verification regulator must enforce the law with respect to illegal pornography to the same standard that exists offline. These amendments, however, deliberately change this and thereby, albeit without perhaps making significant amounts of illegal pornography legal, certainly ask us to support the proposition that our law should instruct the regulator to make space for all but the most violent, illegal pornography. What kind of message are we sending to society? If we vote for these amendments today we will be giving the wrong message. We cannot go to the length of using valuable parliamentary time to change the Bill as it stands through these amendments, which as a matter of practice make space for violent pornography, without sending a message that violence against women is in at least some sense acceptable.

The definition of extreme pornography and material is an inadequate replacement for the prohibited material category which the amendments seek to remove. It will cover only the explicit and realistic portrayal of violence which is life-threatening or likely to result in serious injury to just a few specific parts of the body—breast, anus and genitals. This leaves a range of violent acts and behaviour which we would be saying, courtesy of amendment to Clause 16, is acceptable to be portrayed in online pornography but which would not be granted an R18 certificate, or indeed any other certificate by the British Board of Film Classification for distribution in other ways.

The British Board of Film Classification guidelines state that material to which it refuses to give a certificate includes depictions of the infliction of pain or acts that may cause lasting physical harm; sexual threats, humiliation or abuse; and material, including dialogue, likely to encourage an interest in sexually abusive activity which may include adults role playing as non-adults. I believe that if such material is to be included in the new standard for the acceptable level of violence and abuse in pornography online, we are setting the standards in the wrong place. It puts a sheen of acceptability on materials portraying violent and abusive actions and, in doing so, communicates to the viewer that such attitudes and behaviour towards women are permissible.

In the light of what is already known about the overlap between the use of violent pornography and the development of attitudes which condone violence against women, and sexual aggression, this is deeply concerning. The government Amendment 25H to the definition of pornographic material, and what material can be blocked by the regulator, also places question marks over the standards applied to other formats, by which I mean DVDs and video-on-demand services. I recognise that the internet is a vast place, but simply because there might be different values reflected in different corners of the web, should we capitulate and reduce our standards? I would say not.

The Government have tried to protect the application of different standards set out in other legislation with Amendment 25YU to Clause 27. While the actual legislation may not be changing today for DVDs and video on demand, the pressure to adjust how that legislation will be enforced will be hard to resist. Furthermore, Amendment 25YV implicitly recognises that there are different standards applying in other formats that will no longer apply to the internet, breaking the premise that what is illegal offline is illegal online. This not only disproportionate but extremely risky.

I understand that there are concerns about the original definition of prohibited material, which is being removed by Amendment 25W because of out-of-date CPS guidance, but surely that is a temporary state that will in time be remedied. Making a permanent change to the definition of what pornography is acceptable to supply behind age verification goes beyond addressing the issues on which the CPS guidance needs updating. On touching on the CPS point, I must engage with the argument made by some that the Government are compelled to make these changes because the CPS guidance on the Obscene Publications Act is out of date. As the noble and learned Lord, Lord Mackay, has pointed out, that argument is absurd. If the CPS guidance is out of date, it should update it; it is ridiculous to argue that Parliament, which is sovereign, should have its freedom to do the right thing fettered by the fact that CPS guidance has been allowed to get out of date.

Anyone voting for Amendments 25H, 25W and 25YC will be voting to make space for violent pornography online which the Bill as currently defined does not do. If there is a Division, I shall be duty bound to vote against, because I could not possibly associate myself with an attempt to make violent pornography more available than this Bill currently suggests that it should be, respecting as it does the offline enforcement standards. A vote for these amendments must inevitably have the effect of conferring some level of approval and some measure of normalisation of violence against women. If there is a Division, I shall vote against.

In the unfortunate event of the amendments passing, I shall vote for the excellent Amendment 25YD proposed by the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name. The amendment allows for the definitions of extreme pornography to revert to the current definition of prohibited material in three years’ time, subject to a review in two years. It future-proofs the Bill and provides a means of dealing with this problem without needing to bring forward new legislation and take up valuable amounts of parliamentary time. The three years will provide ample time for the CPS to update the guidance that it should never have allowed to get out of date and provide time for proper public debate.

The internet is a wonderful invention in many ways, but it can be used for ill. Standards on harmful material and pornography have been honed and developed in relation to videos and DVDs in the offline world over many years. It would be ill advised permanently to establish a separate and lower set of standards for the internet. Amendment 25YD will allow the Government’s amendments to address out-of-date guidance but restore consistency in the approach to pornography across all media after an appropriate time. I commend it to the House.

[Lord Alton of Liverpool (CB)]

I support Amendment 25YD in the name of my noble and learned friend, to which she spoke so well earlier on, and the comments of other noble Lords in the debate so far. The problem with coming to this point in legislation, which has proceeded all the way through the other place and is now on Report in your Lordships’ House, on a day when some 174 government amendments have been laid, is that it is very hard to do justice to genuine discussion or indeed scrutiny, which is what this House is supposed to do with these measures. Although I welcome the measured way in which the Minister, the noble Lord, Lord Ashton of Hyde, introduced the amendment today and his assurance that there will be a Green Paper, I was also very taken by my noble and learned friend’s comment about the difficulties there would then subsequently be in having legislation. That is all the more reason not to legislate in haste, lest we end up repenting at leisure.