Digital Economy Bill

Lord Morrow Excerpts

2nd reading (Hansard): House of Lords
Tuesday 13th December 2016 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I welcome Part 3 of the Bill. Government data reveal that in May 2015 there were 1.4 million unique visitors under the age of 18 to pornographic sites from desktop computers. These visits equate to 20% of all under-18s and 13% of children aged between six and 14. This is deeply disturbing, especially as, according to the latest Ofcom research, most children and young people access the internet via a tablet computer or mobile phone, not a desktop computer.

The Government must be congratulated on introducing the age-verification provisions in the Bill. They must be further congratulated on responding positively to the amendments tabled in another place by Mrs Claire Perry, the honourable Member for Devizes, and Mrs Fiona Bruce, the honourable Member for Congleton.

Clause 23 gives the nominated age-verification regulator, the BBFC, much-needed leverage in relation to sites based outside the UK and in relation to those providing free pornographic material. This is vital because the vast majority of online pornography accessed in the UK comes from sites based in other countries and because a significant amount of pornography is free. Once this legislation becomes law, every pornographic website, no matter where in the world it is located, will have a real incentive to treat the UK regulator with respect because they will know that if they ignore it, they risk being blocked.

I understand, however, that although the Government have accepted the need for IP blocking, they continue to promote the alternative means of enforcement provided by the Bill and have indicated that, where possible, these will be used in the first instance. So what are those other options? On my reading, there are two, but it is unclear how one can work at all internationally and the other seems extremely weak.

First, Clause 20 provides for a fine, which can be either a maximum of £250,000 or 5% of the qualifying turnover. When the Bill went through another place, the question arose: why would any pornographic site located outside the UK listen to the UK regulator and, if it decided to ignore its directions regarding age-verification checks, what chance was there that it would then dutifully pay the UK regulator a £250,000 fine? Indeed, an amendment was actually tabled to remove from the regulator the option of issuing fines to overseas organisations. The amendment was probing and, as I understand it, the motivation of the person tabling the amendment, Mrs Claire Perry, was to say, “Let’s be honest, this enforcement mechanism will only work in dealing with sites located within the UK”.

In response, the Minister, the right honourable Matt Hancock MP, acknowledged that fines would not always work abroad but said that there were international mechanisms for enforcing them in some countries. Specifically, he said:

“We want to be able to fine non-UK residents—difficult as that is—and there are international mechanisms for doing so. They do not necessarily reach every country in the world, but they reach a large number of countries”.—[Official Report, Commons, Digital Economy Bill Committee, 20/10/16; col. 217.]

What are the “international arrangements” on which the Government are depending for enforcing the fines? Which jurisdictions in the world can be reached by these arrangements? How easy would it be in practice to use these mechanisms in relation to a site in a foreign jurisdiction to which the said international arrangements apply?

The second alternative enforcement mechanism that the Bill hints at is financial transaction blocking, although it seems to me that the provision is only half present. Although Clause 22 is lengthy, at the end of the day it gives the regulator only the option of informing financial transaction providers that a site seeking access to the UK market is operating in violation of UK law by not having age-verification checks. Clause 22 does not require the regulator to relay this information to financial transaction providers, nor does it empower the regulator to require them not to process transactions with the site nor, consequently, does it empower the regulator to follow through to ensure that the financial transaction provider has complied.

I understand that the Government have suggested that this very limited power to inform the financial transaction providers is sufficient because they are already required by their terms and conditions not to facilitate illegal transactions. This, of course, is not a new argument. It is the same one that was deployed by the Government in response to the financial transaction blocking amendment brought by the noble Baroness, Lady Howe, to the Gambling (Licensing and Advertising) Bill in 2014. The House was told that there was no need to make statutory provision because the Gambling Commission would tell financial transaction providers when a site was operating illegally without a Gambling Commission licence. My difficulty is that the process completely lacks transparency, so we do not know how effective it really is. The only information that we have after nearly three years is the answers to the Parliamentary Questions which suggest that transactions have been blocked to 11 gambling websites. That seems a very low number to me. I do not find it remotely reassuring.

The benefit associated with giving the regulator an express obligation to inform about non-compliance and an express power to require action to block transactions—similar to the requirement for action in Clause 23—is that it would underline the implicit responsibility on the financial transaction providers not to process illegal transactions. Clause 22 also applies to ancillary service providers which support websites with services such as advertising. It is not clear, however, whether the Government are relying on the good will of these organisations or whether they would argue that there is regulation that would require companies supporting websites to withdraw their services if non-compliance came to light. At the moment, the obligations of ancillary service providers are very opaque. Yet making the obligations on the regulator, payment providers and ancillary service providers explicit is really important, because research suggests that without robust enforcement there will be little incentive to comply with the age-verification requirements.

A review of age-verification systems for gambling websites by University of Oxford academics notes that where there are,

“strict audit and enforcement requirements”,

there is an incentive to invest in,

“high-assurance identity and age-verification processes”,

but,

“where enforcement is patchy and uncertain, the incentives to invest in expensive authentication systems are less clear”.

According to the review, that is,

“especially true for smaller or less well-known companies who are also less likely to receive reputational damage if any illegal selling is revealed”.

I believe that there is a very strong case for amending Clause 22 to require the age-verification regulator to tell financial transaction providers of non-compliance and to place an enforceable duty on them not to process transactions between people in the United Kingdom and sites operating in violation of the digital economy legislation. I also think that there is a very strong case to be made for an amendment giving the regulator power to require ancillary services such as advertisers not to advertise on sites operating in violation of UK law.

I very much look forward to the Minister’s response to the questions I have asked and the points I have raised about enforcement.

Digital Economy Bill

Lord Morrow Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 2nd February 2017 Lords Chamber

As I have made clear, these are all procedural amendments that spell out the detail that the Delegated Powers Committee said was lacking. We had hoped that the Government would have tabled their own amendments to achieve a similar outcome, but in the absence of that positive government response I hope that noble Lords will feel able to support our amendments. I beg to move.

[Lord Morrow (DUP)]

My Lords, when I spoke at Second Reading on 13 December, I addressed the enforcement provision in Part 3, and want to do so again today. I warmly welcomed Clause 23, as have other noble Lords, which the Government introduced on Report in another place, and I continue to do so.

Clause 23 is a robust provision and I believe that it would be far more effective than the proposal in Amendment 66, tabled by the noble Lords, Lord Paddick and Lord Clement-Jones, which would replace Clause 23 with one entitled “Court orders”. The truth is, as I shall explain when speaking to amendments in the next group, that there are real problems with the enforcement mechanisms provided by Clauses 21 and 22 of the Bill, especially in relation to websites based outside the United Kingdom. This has always been a special concern, because the vast majority of online pornography accessed from within the UK is accessed from sites based in other jurisdictions.

The failure of Clauses 21 and 22 to provide credible enforcement mechanisms for the age verification requirement in Part 3 was highlighted very effectively in another place by parliamentarians from across the political spectrum. The critical thing about Clause 23 is that it gives the age verification regulator the power to enforce the age verification check provision without delay. The knowledge that, regardless of where in the world the site is based, it can be blocked by the UK age verification regulator will give those sites a strong incentive to introduce robust age verification. Amendment 66, by contrast, would place this in great jeopardy.

I want to raise three major problems with Amendment 66. First, it causes delay in the sense that, if it were to become law, we would then have to wait for the Secretary of State to introduce regulations, without which the age verification regulator would have no power to initiate IP blocking. Secondly, Amendment 66 makes the provision of these regulations, and thus the provision of IP blocking, entirely optional. If the Secretary of State does not get round to producing the regulations, there will be no IP blocking at all. Thirdly, in depending on a court injunction process, this amendment apparently prefers a very much slower, more expensive and more cumbersome mechanism, which websites will know cannot be used very often. This will give them hope that they can carry on without age verification checks because the chances of their being caught will be much less. Of course, the existence of the current Clause 23 powers does not mean that those powers will be used frequently, but the fact that websites will know that they could be deployed quickly and easily will make them much more wary about taking such risks, and will therefore keep children that much safer.

In setting out these objections, I make two other points. First, I understand the argument that there is a copyright precedent for the use of court injunctions, but the idea that we should therefore necessarily follow it is not remotely compelling. There was once a time when injunctions were not used in relation to copyright, but—rather than saying that there is no precedent to act and therefore we should not act—the decision was made that we should act and, in the case of copyright infringement, the use of injunctions was appropriate. Today, though, we are not dealing with copyright infringement; we are dealing with something quite different, which has a concern for child protection at its core. In this context, the mechanism set out by the Government in Clause 23 is more effective and much more appropriate. Secondly, if Amendment 66 is based narrowly on a civil liberties concern, I would have to say that, quite apart from the fact that this concern has to be balanced with a concern for child protection—which, in my view, Amendment 66 does not manage to achieve—it is important not to lose sight of the fact that any decision on the age verification regulation could be judicially reviewed.

When faced with a relatively robust provision of an enforcement mechanism for age verification that would help keep children safe, Amendment 66 with its delays and optional, rather than mandatory, standing cannot but be seen as an attempt to weaken the child protection provisions in the Bill, which I find deeply disturbing. Part 3 of this Bill entered your Lordships’ House as a robust and progressive measure placing us at the cutting edge of child protection online. If we were to replace Clause 23 with Amendment 66, it would leave us much weaker and—in the sense that websites would know that they could risk never being held to account for not having age verification checks—fatally compromised. I believe that this is misjudged, misconceived and mistimed. I very much hope that the Minister will stand by Clause 23 and oppose Amendment 66.

[Lord Clement-Jones (LD)]

My Lords, I am absolutely delighted that we have had the views of the noble Lord, Lord Morrow, about my amendment before I had a chance to speak to it, but maybe that’s life—he has given me the benefit of his views before I have set my own on record. I thought that the noble Baroness, Lady Jones, set out extremely well the frustrations of those of us who, in the words of my noble friend Lord Storey, are very keen to make sure we get the right shape for this part of the Bill. There is absolutely no difference between us, in that we wish to see Part 3 be as effective as possible in preventing access to child pornography. We have been debating for only an hour and it is quite clear that this part of the Bill is worryingly embryonic.

Digital Economy Bill

Lord Morrow Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Thursday 2nd February 2017 Lords Chamber

Moved by

[Lord Morrow]

56: Clause 20, page 21, line 21, at beginning insert “If the person in contravention of section 15(1) is resident in the United Kingdom,”

[Lord Morrow (DUP)]

My Lords, I wish to speak to Amendments 56, 58 and 65, which stand in my name and that of the noble Baroness, Lady Howe of Idlicote. At Second Reading, I made clear my concerns about how Part 3 would be enforced. Given the wide-ranging scope of the Bill, I did not expect to get detailed answers to my questions when the Minister wrapped up the Second Reading debate on 13 December. However, I am disappointed not to have received any subsequent reassurances from the Minister about my concerns and I therefore raise the same points again today, in the hope of receiving some concrete answers.

Part 3 of the Bill relies on three enforcement mechanisms, one of which is IP blocking, in Clause 23, which I support but will leave others to discuss. I am concerned about the other mechanisms, which many hope will be used before IP blocking is even considered. My Amendment 56 is to Clause 20, which allows the age verification regulator to impose a fine of either a maximum of £250,000 or 5% of the qualifying turnover. How will this power operate if the website which is not in compliance with the age verification requirements of Clause 15 is based outside the UK? I am not the only noble Lord to have this concern. At Second Reading, the noble Baroness, Lady Benjamin, said that she was concerned about how the Government would be able to ensure that overseas sites would pay these fines. The noble Earl, Lord Erroll, with all his experience chairing the Digital Policy Alliance, also said that:

“One of the things that became apparent early on was that we will not be able to do anything about foreign sites”.—[Official Report, 13/12/16; col. 1214.]


As it seems unlikely that the Government will be able to collect fines from individuals outside the United Kingdom, my probing amendment, Amendment 56, would make that position explicit by ensuring that fines can be imposed only on someone resident in the UK. I would very much like to be proved wrong, but there is no evidence yet as to how this policy will be successfully enforced.

--- Later in debate ---

There has been quite a lot of detail in my response, but I hope that it will be enough for the moment to allow noble Lords not to press their amendments.

[Lord Morrow]

My Lords, I respectfully thank everyone who has participated in this debate. I have to be honest with the Committee that I am disappointed by the response. However, I must be very truthful, too, in that I am watching the clock with one eye as I have a flight to catch, and I may not catch it if I stand here any longer. So noble Lords may understand why I will be brief. I was looking forward to the Minister perhaps explaining in some detail how the fangs would apply abroad and how that would work. I would be grateful if, even now, he would take that on board. Perhaps he would write to me and outline in some detail how he sees that working.

Very briefly, on the point made by the noble Lord, Lord Paddick, this will bind services and financial transaction blockings only if they have a foot in the UK. My amendment would provide leverage in that instance. That was the point that maybe I did not make clear, but it was the point I was trying to make. Also, I was very struck by the point of the noble Lord, Lord Maxton, when he said that he thought the way forward would be identity cards. If that amendment is brought up at a later stage, he will discover that I am very close behind him going through the Lobby when he makes that suggestion. At least he can look to me for that—whether that is good news or bad news. He does not seem very impressed. I leave it there and thank everyone for speaking today. I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

Digital Economy Bill

Lord Morrow Excerpts

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

[The Earl of Listowel (CB)]

My Lords, I offer my strongest support to my noble and learned friend Lady Butler-Sloss in her Amendment 25YD. She is of course a former president of the family courts and a chair of the adoption Select Committee which recommended additional support for adoptive families, a recommendation which has now been implemented. She has a long record in protecting vulnerable children.

I apologise for rising for the first time at this late stage in proceedings on the Bill. I felt bound to do so because I am vice-chair of the parliamentary group for young people in local authority care. On my noble and learned friend’s concern that the relaxing of the regime might to some degree encourage an increase in the level of domestic violence, many young people coming into care come from backgrounds where there is domestic violence. I agree with her entirely that we need a review to make sure that such a change does not contribute towards violence towards women.

I thank the Minister for the additional protections in the Bill for children accessing pornography; they are very welcome indeed. I extend my thanks to his colleagues in the other place for introducing a statutory requirement for personal, social, health and economic education, which will ensure that all children receive high-quality sex and relationship education. I heard from Professor Sue Berelowitz last night, an academic who has produced a number of reports on child sexual exploitation. She highlighted to me the correlation between violent pornography and domestic violence. It is only a correlation, but because there is such a correlation, we should give it careful attention. I support my noble and learned friend’s amendment and I hope that your Lordships will choose to do so.

[Lord Morrow (DUP)]

My Lords, I support Amendment 25YD in the name of the noble and learned Baroness, Lady Butler-Sloss. I fully support powers to block the supply of damaging pornography both to support the requirement for age verification and to prevent the distribution of material that is harmful even for adult viewing. I support the Government’s intention announced last month for a,

“major new drive on internet safety”.

I support the Prime Minister’s launch of a plan to,

“transform the way we tackle domestic violence and abuse”.

But the principle of joined-up government seems to be lacking as we review the Government’s amendments to Clauses 16 and 22 and the new clause defining extreme pornographic material.

The Government have recognised that the internet with its many amazing facets can also be extremely detrimental to the well-being of our young people if they are accessing pornography. That fact no longer seems to be in dispute. We recognise its impact on young people’s self-perceptions and relationships. I hope your Lordships will bear with me as I quote from the 2013 report prepared for the Children’s Commissioner for England. It concluded:

“Access and exposure to pornography affect children and young people’s sexual beliefs … maladaptive attitudes about relationships; more sexually permissive attitudes; greater acceptance of casual sex; beliefs that women are sex objects; more frequent thoughts about sex … Pornography has been linked to sexually coercive behaviour among young people, and, for young women, viewing pornography is linked with higher rates of sexual harassment and forced sex”.


This is why we want to protect children and I fully support the Government’s intentions.

I find myself perplexed as to why we think this material has no impact on a person when they turn 18. I accept that being an adult brings certain freedoms, but they are not infinite. I accept that we have laws that make it an offence to possess certain types of material and that that position remains, as set out in government Amendment 25YV, but at the same time government Amendment 25H is saying, “It is okay for a person running a website to supply that very same material into the UK as long as it is behind age verification”, with an exception for a very small number of very realistic images. I hope that the Government will reassure us that there are, indeed, a significant number of prosecutions for those offences, but I have my doubts. Even if there are cases that come to court in the coming years, are we going to be hearing, “This material was behind age verification systems, which the Government have said are what is needed. Therefore I thought material X and Y was within the law”? We are sending very mixed messages to the public about violent pornography.

I am particularly concerned about animated images of child sexual abuse, which would be against the law to possess in the UK and would be considered “prohibited material” under the present definition but will not be caught by the definition of “extreme pornography” the Minister intends to replace it with.

I greatly value the work of the Internet Watch Foundation in taking down online child abuse images, but it does not have the remit to cover animated or drawn images if the websites on which they are found are hosted outside the UK. This limitation is compounded when we understand that 99% of criminal content is hosted outside the UK. It disturbs me greatly that we are being asked to purposefully amend the Bill to remove from the regulator the power to prevent those images being made available in the UK via the internet when there is no other body able to fulfil that role. I cannot agree to changing a definition to one that will class such images as acceptable behind age verification. Therefore I will not be supporting the government amendments in this group.

I am not alone in my concerns about the kind of pornography these amendments would make permissible. Polling undertaken by ComRes over the weekend and published today—my colleague has made reference to it already—asked more than 2,000 adults what sorts of violent acts should be allowed in pornography online. In responding to different forms of content against which the age verification regulator would not have the power to act if the government amendments pass today, public opposition to allowing access to that material varied from 74% to 81%. Not surprisingly, these figures were bigger among women, who clearly feel particularly worried about these changes. Whatever pressure the Government may have been under to make the changes proposed today, the great majority of the general public do not want the material described as “prohibited” to be accessible.

I have consulted John Larkin QC, the Northern Ireland Attorney-General, about how the Bill will impact Northern Ireland and he advises me that he can “see no good reason for a change from the prohibited material category to the extreme pornography category.” Noble Lords will understand that I am inclined to agree with him. I am not convinced by the Government’s arguments that such a wholesale change of approach is needed and do not support the government amendments. As someone who took Northern Ireland’s equivalent of the Modern Slavery Bill through the Northern Ireland Assembly, I am particularly alive to the reality of violence against women. I find it very surprising that a Government led by a female Prime Minister who took the Modern Slavery Bill through Westminster should countenance the amendments before us today. I wonder whether she has been properly briefed on their consequence.

If there is a Division on the government amendments, I will vote against. In the unfortunate event that the amendments pass, I will vote for Amendment 25YD in the name of the noble and learned Baroness, Lady Butler-Sloss, and other members of your Lordships’ House. It proposes that there should be a review of the effect of this change and a sunset clause that would revert the effect of the Bill back to that in Committee, because it is time we looked at the evidence for how this material is impacting adults as well as young people. We are a digitally connected people—for good and ill. I am not suggesting that every violent sex crime is fuelled by pornography but it is time we had an open discussion about the impact of this material on violence against women and children, so that there can be reasoned policy responses.

The Relate counselling service has indicated that counsellors are increasingly seeing problems with “relationships and sexual functioning” as a result of internet pornography. In The Way We Are Now: The State of the UK’s Relationships 2015, Relate reported that 23% of 16 to 34 year-olds in a relationship reported an “overall negative impact” on their relationship from use of online pornography. The report said that pornography use is,

“an increasingly common topic in the counselling room”.

Last year, a journal article reported, based on interviews with 55 women in rural Ohio, all of whom were trying to leave their male partner, that,

“pornography is a major component of the problem of rural woman abuse”.

I hope Amendment 25YD will get overwhelming support from your Lordships that there needs to be a careful review of this change and the brakes put on, if necessary.