Digital Economy Act 2017 (Commencement of Part 3) Bill [HL]

Lord Morrow Excerpts

2nd reading
Friday 28th January 2022 Lords Chamber

Moved by

[Lord Morrow]

That the Bill be now read a second time.

[Lord Morrow (DUP)]

My Lords, first, I take the opportunity to acknowledge the noble Lords attending today to support this Bill. I particularly want to thank those who have made a special effort to attend today and speak on this important issue. I look forward to hearing everyone’s contribution to this debate; I know that many others would have liked to be here today but are unable to be present. It is clear that there is strong cross-party support for this issue and for action to be taken.

I also want to put on the record my thanks for the pioneering work of Baroness Howe, who tabled this Bill in the previous Parliament, before her retirement in June 2020. She set a high bar for those of us concerned with online safety.

Before I set out the reasons for this Bill, I want to set out what it seeks to achieve. It is a very simple, one-clause Bill that seeks to ensure that regulations are brought into force to commence Part 3 of the Digital Economy Act by 20 June this year. In brief, Part 3 requires commercial pornographic websites to introduce age verification so that children are unable to access pornographic material. It requires the appointment of a regulator to oversee the age verification and to instruct internet service providers to block sites without age verification or which contain illegal and extreme pornography.

It seems remarkable that this Bill is even needed. The Digital Economy Act received Royal Assent on 27 April 2017, and it has been almost five years since Parliament passed that legislation into law. I am not sure what the correct adjective is to use: “shocking” does not seem to be strong enough, but it is shocking that, almost five years after legislation was passed to protect children from accessing pornography, the Government have continued to fail in their obligation to introduce this part of the 2017 Act and provide the children of the UK with some level of protection from accessing pornography online. Indeed, the July 2021 report of the Communications and Digital Committee of your Lordships’ House said:

“The Government’s inaction has severely impacted children”.


It is not just children who are failed by the Government’s inaction; it is also women who are let down by this legislation not being brought into force. As I said, Part 3 of the DEA provided for a regulator with robust power to deal with extreme and violent pornography. We do not have to cast our minds back too far into the past to see the harm caused by extreme pornography. Just last spring, a woman who should have felt safe walking home in the early evening through the streets of London was attacked and died at the hands of a man who was addicted to the type of pornography that Part 3 of the DEA seeks to address. We will of course never know what might have happened in the case of Sarah Everard if this legislation had been in force, but what we can say with certainty is that action would have been taken to address the type of pornography to which her attacker had formed an addiction.

This legislation should have been in force in 2018, but there were several delays in getting the framework in place. Just as everyone thought that Part 3 was about to come into effect, it came to light that there was a departmental error: the department failed to inform the EU that the legislation was going into force, and implementation was delayed again. Two weeks after the EU notification period was concluded, in October 2019, the Government announced that they were not going to implement the legislation after all, despite spending £2.2 million to ensure that the BBFC was ready to be the regulator. The implementation of the legislation was shelved. The Government gave no indication that they were going to take this course of action; they did not consult with interested parties or speak to children’s charities or the many organisations helping women across this country. They simply buried the legislation.

The question that has never been answered is why. When the Government made their decision in 2019, we were told that new proposals would be brought forward in early 2020 for pre-legislative scrutiny. While Covid could be advanced as a reason for delay, it is surprising that pre-legislative scrutiny of what is now the online safety Bill did not start until May 2021; more than 18 months after the Government promised new proposals, pre-legislative scrutiny began. As of today, the online safety Bill has completed that pre-legislative scrutiny and is still a few months away from starting its parliamentary journey.

Five years after Parliament legislated that age verification be placed on pornographic websites, children do not have the protection of that technology to keep them safe online. While the Government will probably respond that the online safety Bill will fix the problem—and it may well do—the jury is definitely out on that matter, since the Bill as currently drafted does not have robust age-verification measures contained within its provisions and pornography is not mentioned on the face of the Bill. Put simply, the online safety Bill, as currently drafted, is less robust in protecting children compared with Part 3 of the DEA. The online safety Bill as drafted covers only user-to-user content. It does not cover all commercial pornographic websites. It is unacceptable that protection for children online should be diminished in any new law.

Whatever form the online safety Bill takes when it receives Royal Assent, one abiding problem remains: what are we going to do now? Five years is already too long to wait for protections to be put in place, given that the online safety Bill is unlikely to receive Royal Assent before 2023, and the Government tell us that it may take 18 months for Ofcom to be ready to assume the role of regulator. What do the Government propose that we do now and for the next few years? We face the prospect of almost 10 years having passed between age verification having first been raised in the Conservative manifesto as a way of protecting children online and that vital safety measure being put in place on commercial pornography websites.

A child who was eight years old when this proposal was first put forward in 2016 will be an adult when the protections will finally be in place; they will have gone through their formative years and been exposed to untold harm online. Potentially, they will be in the grips of addiction by the time this protection is made a legal requirement, if it is at all—yet it could have been avoided. If the Government had only done what they were supposed to do by law, that child, who will be an adult by the time the online safety Bill is implemented, could have been protected.

The charity Naked Truth helps adults facing this reality. One person they have helped is Jack from Manchester. Jack says that he was first exposed to pornography when he was 11. His story is a common one: a group of boys looking online and coming across pornographic material. By the age of 16, Jack was addicted to online pornography. He says, “Some of the things that I saw made me excited, yet others shocked and disgusted me and made me feel almost sick. Yet as I explored this world more and more, I found that the things that first made me gasp in shock and disbelief slowly started to become attractive.” He became desensitised to what he was seeing online.

As Jack entered adult life, his addiction had taken hold and he could not stop. It infected his entire life. Jack continued, “It took me over 10 years to rid myself of pornography addiction that started at a young age. Its effect on me, my mental health and attitude to women has ruined my life as a teenager and young adult and still deeply affects these aspects of my life to this day. I wish only that there were a way to stop and protect children—like I once was—from pornography, so they would not make the same mistakes I made and have the inappropriate exposure that I was first exposed to.”

There are hundreds of thousands of children like Jack across the UK. According to research by DCMS, 80% of children aged six to 12 have viewed something harmful online, while over 50% of teenagers believe that they have accessed illegal content online. Jack and the millions of children like him are the ones that Part 3 of the DEA was enacted to help, yet they have been failed. We cannot allow children to continue to be let down, especially when there is legislation on the statute book right now that would protect them. If passed, this Bill before the House today would ensure that protection was in place this year.

It is important to understand that it is not just a matter of waiting for the online safety Bill to come into force. The position is not that the online safety Bill will do all that Part 3 would have done—albeit a number of years late—but that the substance of the Bill as currently drafted is considerably less than what Part 3 of the DEA would deliver in a number of respects.

First, commercial pornography sites are not captured by the current draft of the online safety Bill. The Joint Committee scrutinising the Bill has recommended in its report that the Bill be amended to include pornography—a position supported by the Digital, Culture, Media and Sport Committee in the other place in its report published on Monday. We await the Government’s response, but the Bill at present would allow many pornographic sites to continue operating in a non-regulated manner.

Secondly, how age verification will operate and to which parts of the online world it will apply are unknown. The Bill documents state:

“The proportion of businesses required to employ age assurance controls and the type of controls required are unknown at this stage, this will be set out in future codes of practice.”


The Joint Committee proposes that the age-assurance design code be utilised to cover age verification, but we do not know how that will work. The design code relates to the processing of data and the Information Commissioner is clear that they do not believe that it covers content. So we are as yet uncertain about how age verification will continue—and even whether it will operate at all. That clarity and certainty can be delivered by Part 3 of the DEA.

Thirdly, and in a similar vein, there is no requirement to block extreme pornographic websites. The Government’s 2021 Tackling Violence Against Women and Girls strategy states:

“Through the new Online Safety Bill, companies will need to take swift and effective action against illegal content targeted at women … The Government will work with stakeholders and Parliamentarians to identify priority illegal harms which will be specified in secondary legislation and may include those of particular relevance to women, such as ‘revenge porn’, extreme pornography”.


Again, we have a lack of certainty about how women will be protected from online pornography, despite the strategy saying:

“The Call for Evidence showed a widespread consensus about the harmful role violent pornography can play in violence against women and girls, with most respondents to the open public surveys and many respondents to the nationally representative survey agreeing that an increase in violent pornography has led to more people being asked to agree to violent sex acts”.


Fourthly, it is not clear whether the wide list of actions that are considered enforceable under the draft online safety Bill will be effective in preventing harm to children or violence to women. Part 3 of the DEA relies on the regulator asking ancillary services to block services or requiring ISPs to block websites to enforce the provisions. Under the draft online safety Bill, only in rare situations will a court—rather than the regulator, Ofcom—direct an ancillary service to take action against an ISP or other service to block access to a provider, and it is not clear how proactive Ofcom will be in ensuring that websites are implementing the duty of care as set out in that Bill. There is so much uncertainty surrounding the online safety Bill, yet we have sure and certain legislation on the statute book right now. My Bill would ensure it was brought into force this year.

It is disappointing that the Government have continually ignored pleas from across this House and the other place to implement this legislation. If the Government continue to be unwilling to implement Part 3 of the DEA, what then is the alternative? Are there any other measures that they plan to bring forward in the interim to ensure that children are protected? Speaking in the other place on 10 June last year, responding to the Ofsted review on sexual abuse in schools and colleges, the then Parliamentary Under-Secretary of State for Education stated:

“The Online Safety Bill will deliver a groundbreaking system of accountability and oversight of tech companies and make them accountable to an independent regulator. The strongest protections in the new regulatory framework will be for children, and companies will need to take steps to ensure that children cannot access services that pose the highest risk of harm, such as online pornography. In addition, the Secretary of State for Education and the Secretary of State for Digital, Culture, Media and Sport have asked the Children’s Commissioner to start looking immediately at how we can reduce children and young people’s access to pornography and other harmful content. That work will identify whether there are actions that can be taken more quickly to protect children before the Online Safety Bill comes into effect.”—[Official Report, Commons, 10/6/21; col. 1162.]


That was seven months ago and, apart from some press reports stating the views of the Children’s Commissioner for England and Wales, we do not have any clear indication of what interim measures the Government are going to take to reduce access by children to pornographic and other harmful content online.

When Part 3 was delayed, the Government said that preventing children’s access to pornography is a critically urgent issue. The slow pace of responding to the Ofsted report suggests that the Government think otherwise. The Government say they are going to identify action that can be taken to protect children, yet the one action they can take, legislative action—namely, the implementation of Part 3 of the DEA—is the one thing they continue to refuse to do. The Joint Committee, when reporting on the online safety Bill, stated that age assurance needed to be in place within six months of the Bill receiving Royal Assent. I understand that the Government believe it could take two years for a regulator to be in place to properly administer age verification. If it will indeed take two years for Ofcom to get ready to be the regulator and consult on its role and legal powers, surely the Government should start the process now.

I appreciate that there is doubt about the steps Ofcom can take now to speed up implementation of whatever new regulations will be required to give effect to the online safety Bill’s provision in respect of pornographic sites. Mindful of that, an opportunity exists for the Secretary of State to utilise the Digital Economy Act 2017 to allow Ofcom to start work now. Ofcom could be designated under Section 17 of the DEA as the regulator. This would, at the very least, give it legal cover to undertake research into the size, shape and nature of the online pornography market in the UK, the readiness of the industry to respond to any new laws on age verification, the relevant technologies and related matters. Once that preparatory work is complete, it would have a clear idea of how it would need to respond when its responsibilities under the online safety Bill become clear and would be able to prepare a consultation process to ensure that regulation begins as soon as possible after Royal Assent.

Let me be clear: this is far from the preferred option but does, at the very least, represent a way forward and allows the Government to use Part 3 of the DEA to ensure that protections are delivered without delay once the online safety Bill is law. I ask the House to support this Bill and send a message to children and women across this nation that we value them. Real lives are being affected by the current lack of protection. We must take action to prevent more people like Jack falling into the addiction that has had a devastating effect on his life. We cannot allow another tragedy like that which happened to Sarah Everard.

While Part 3 of the Digital Economy Act will not solve all the issues in relation to online pornography, one thing that is certain is that the landscape will be much safer with those protections than without them. It is not just Members of this House who believe that; the general public want action on this issue now. According to BBFC research, 83% of parents across the UK want the Government to act and bring in age-verification measures now. It is within the Government’s gift to provide protection. That is why I ask that the Government take this Bill seriously and that, if they do not support it, they set out urgently their alternative proposals to ensure that children and women are protected to the same level as envisaged by Part 3 of the DEA while the online safety Bill makes its way through the House. I beg to move.

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I will be brief in my few closing remarks. I have listened intently to what the Minister said. I thank him for his comments, but I must be frank and honest: I am disappointed, but perhaps not surprised. I will leave that comment there.

I am grateful to all noble Lords who have taken the time to speak on this issue and to support the Bill. It is heartening that there is still a great degree of unanimity across the House on the way forward on this issue. I also thank the Minister but, although I have listened very carefully, I will reserve judgment until a later date.

The noble Baroness, Lady Benjamin, helpfully reminded us of the timescale and the opportunities that the Government have missed over the last five years. The implementation of age verification is a catalogue of government delays. The process simply repeats itself: there are promises by the Government that something will be done, and great hope is expressed in new legislation and that change is imminent, but all it amounts to is another delay.

The Government first delayed the implementation of Part 3 of the DEA in 2019, promising new legislation. However, given how long it took for the Government to bring forward the online safety Bill, they could have acted at any time since 2019 to bring in Part 3. That has not happened and, having listened to the Minister, I am still concerned. If they had done so, age verification and protections against extreme pornography could have been in force by now.

At the start of last year, the Government wrote to the noble Baroness, Lady Benjamin, indicating that it would take 22 months to designate Ofcom under the DEA and have it regulate the legislation’s provisions. If they had only commenced Part 3 of the DEA on that date, it would have meant that, even by the Government’s timetable, age verification would have been operational in this country before the end of this year. I fear that the online safety Bill will mean yet more delays. It could be four more years before the protections that Parliament enacted in Part 3 of the DEA come into force.

If I were to do them justice, I would name everyone who has spoken today. What an array of speeches we have heard, made with passion and commitment. I thank all speakers most sincerely. We were reminded by many of them that a generation of children could grow up without benefiting from protection online. That is all the more shocking when legislation already exists that could be brought into force to protect them. The noble Lord, Lord Alton, who has worked tirelessly over many years to help protect children and young people from harm, both offline and online, reminded the House of what can be achieved with cross-party support. It is clear that cross-party support exists for Part 3 of the DEA.

I echo what the noble Lord, Lord McColl, said: Part 3 is not the complete answer to all the issues concerning online pornography—we have accepted that from day one—but it is what we have available now. Clearly, this is a provision that could be brought in now, and built on and improved through the online safety Bill.

As my noble friend Lord Browne reminded us, there is little or no defence for government inaction in this matter. The Government’s own research highlights the harm from online pornography and the issues that arise when children are exposed to it. The Government have the data, and they know the harm that is carried into adult life and the devastation it brings to families and society. That is why it is time for them to act.

Three years on from the Government announcing that they would not progress Part 3 of the DEA, the problems have not gone away. The internet is still an unregulated place for our children. It is surely time for action.

Bill read a second time and committed to a Committee of the Whole House.