Online Safety Bill [HL]

Lord Morrow Excerpts

Friday 11th December 2015 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I am very pleased to speak in support of the amendment proposed by the noble Baroness, Lady Benjamin, which makes explicit the fact that decisions about filtering are not just made at the set-up stage. I recall that during Second Reading the noble Baroness, Lady Howe, sought to highlight the fact that, in the context of the current voluntary filtering agreement between the big four ISPs, there is nothing to stop a child lifting adult content filters after they have been put in place. This seems to be a serious design flaw with the voluntary agreement, and one that I am glad this Bill seeks to rectify.

I note that when the Minister was pressed on this point during Second Reading she said that,

“three-quarters of parents in the UK are confident that children are unable to bypass these tools. But to mitigate any further risk, as has been said today, ISPs email the main account holder when filter settings are set or changed”.—[Official Report, 17/7/2015; col. 860.]

I think that possibly the Minister misread the point. The lack of age verification in the event that after parents select filters at the set-up, their children subsequently—and unknown to them—turn the filters off, is not about bypassing filters.

The point is not that some very technologically able young people who can work out how to bypass filters should be subject to age verification. I am not sure how one would apply age verification to such clandestine activity. The concern relates instead to a larger group of children, with no great technological expertise, being able to switch off the filters in the same way as an adult who has no special technical expertise can do so, because the ISP has provided the user with the facility to maintain or lift filters. This is the process that should be age-verified. The idea that this concern has been sufficiently addressed by the provision of an email sent to the account holder after the filter settings have been changed, informing them of that fact, is deeply concerning.

Age verification should happen before an age-restricted activity is permitted. The idea that it is acceptable to do this after the fact, and by the most flimsy of arrangements, is quite extraordinary, to say the least. As the noble Baroness, Lady Benjamin, has said, even if you live in your inbox and open all your emails as they come in, it will still take you some time to address the problem if you are at work, which leaves the children exposed to harmful content, possibly for some hours. Most of us, however, take a while to get round to opening our emails—half a day, three days or a week. As the ComRes polling eloquently testifies, some people may never open it, leaving children exposed to adult content, unknown to their parents, who will assume the filters are still on indefinitely. I very much hope that when the Minister responds to this amendment, she will at least commit to review the provisions in place to help prevent children lifting adult content filters, after they have been introduced at the set-up, without prior age verification.

[The Earl of Erroll (CB)]

This amendment is quite logical, if the provisions are going to work. It is obvious that, if people can switch off filters, the whole thing is bypassed. I want to speak on the next amendment, about age checking, but this is a logical amendment to have if you want to get this Bill to work. As I said at Second Reading, filters are not quite good enough, because you can block only at the point when you access the page. Filters are quite crude—that is the problem; they tend to block entire websites, or they overblock and then people lift them. So there are a lot of problems around the amendment but it is hugely well intentioned, and I do not have a problem with people using filters. It is a good starter lock and will block a lot of simple things, but we need to go slightly further to block those who are technically savvy from getting round them—or those who persuade their parents that, because they could not get to a particular page on a website, they should override the filter for that website and unblock the whole thing. The convenience of the parent will probably win. How you get this to work is always the problem but that is not to say that we should not try.

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Moved by

[Lord Morrow]

3A: Clause 2, page 3, line 3, after “Assent” insert “, including assessment of—
“(i) filtering of adult content under Part 1 of this Act by providers and operators;(ii) age verification policies used under Parts 1, 2 and 3 of this Act”

[Lord Morrow]

My Lords, this is a probing amendment which makes explicit two of the matters that the Ofcom report required by Clause 2(6) should cover: an assessment of the filtering of adult content required by Part 1 and the age verification policies referred to throughout the Bill.

One of the great strengths of Clause 1 is that it covers filtering of adult content by all internet service providers and mobile phone operators. Ofcom’s reporting duty should therefore relate to the conduct of all providers. It was very noticeable that in its recent review of filtering by ISPs, Ofcom considered only the big four ISPs that are subject to the voluntary filtering agreement negotiated with the Government. I do not believe that this filtering arrangement is sustainable in the long term unless we are prepared to countenance affording better rights to children fortunate enough to live in households provided for by the big four ISPs than to those living in households serviced by other providers. According to Ofcom’s published facts and figures, the market share of the big four ISPs in 2015 was 88%. That is the same percentage as in 2014 with a slightly different distribution between the ISPs: BT had 32%, Virgin Media had 20%, TalkTalk had 14% and Sky had 22%. That leaves 12% of the market, and therein hundreds of thousands of children, beyond the reach of the agreement.

I am of course aware that, although not party to the agreement between the big four providers, a number of the smaller operators provide good filtering options. A survey late last year discovered that of the 14 smaller ISPs that service homes, four were found to be offering something nearly comparable to the big four but 10 were not. Of those 10, two made it clear that they did provide filtering but it had to be applied by the customer separately; it was not an unavoidable choice during the set-up stage. Seven ISPs could not provide any information about filtering. One expressly said that it did not provide filtering. While the conduct of the four smaller ISPs is encouraging, the provision of filtering options by the smaller providers as a whole is concerning, and serves to underline the need for a common statutory approach.

I note that during the Second Reading debate on the Bill, the Minister, when challenged on this matter, responded in the following terms:

“It is important to note that these providers state at installation and on their marketing materials that they do not have child safety credentials”.—[Official Report, 17/7/15; col. 860.]

The implication of this approach would seem to be that so long as the company makes these statements, it will be okay. This seems rather extraordinary, raising the question: if this approach is sufficient, why can the other providers not do the same? It also jars with the survey that I mentioned earlier where only one of the 10 smaller ISPs clearly stated that it did not provide filtering. I am struggling to believe that this really represents the Minister’s position.

So long as some ISPs offer less protection than that provided through the agreement between the big four providers, and so long as we agree that all children are of equal value regardless of which provider services the homes in which they live, the only solution certainly seems the even-handed one proposed by the Bill, which requires the same minimum filtering from all providers, the conduct of which, subject to my amendment, should be reflected in the Ofcom report.

The case for making the changes proposed in Part 1 of the Bill and my amendment has of course been greatly strengthened since Second Reading as a result of the Prime Minister’s decision to introduce filtering legislation, which he announced in another place on 28 October. In responding to a question about whether the EU net neutrality vote would jeopardise our approach to filtering, the Prime Minister said:

“Like my hon. Friend, I think that it is vital that we enable parents to have that protection for their children from this material on the internet. Probably like her, I spluttered over my cornflakes when I read the Daily Mail this morning, because we have worked so hard to put in place those filters. I can reassure her on this matter, because we secured an opt-out yesterday so that we can keep our family-friendly filters to protect children. I can tell the House that we will legislate to put our agreement with internet companies on this issue into the law of the land so that our children will be protected”.—[Official Report, Commons, 28/10/15; col. 344.]

The words that struck me particularly in that passage were,

“I can tell the House that we will legislate”.

While I do not agree with the EU vote, the fact that it means that Britain will now legislate in this area is very welcome, both because it endorses the statutory approach advanced by this Bill and because it provides an opportunity for addressing the failure of the current approach to cover 12% of the market.

I understand that the Government must have legislation on the statute book by the time the new European provisions come into effect—on, I think, 30 April 2016—so they are very fortunate to have this excellent Private Member’s Bill already in Committee. I hope that the Minister can assure me that the Government will give serious consideration to adopting this Bill to protect ISPs from litigation. If the Government insist on bringing forward their own Bill, I impress upon them the need to require filtering, on the basis mandated by the Bill, for all ISPs that service households with children, not just some. This should also be reflected in Ofcom’s reporting obligation.

I should say in passing that if the Government are going to bring forward their own legislation that will have to be implemented by April next year, they should do so very quickly. There can be no excuse for rushing this through at the last minute when we have known this since the end of June this year. I beg to move.

[Baroness Healy of Primrose Hill]

My Lords, I support the amendment from the noble Lord, Lord Morrow. Ofcom should have to report on the compliance of all ISPs, not just the big four, and all ISPs should be subject to the same filtering obligations where they service households with children, as the noble Lord has said. The Government need to ensure that all providers that service households with children have adequate filters. If the Government now need to make legal provision for filtering, in order to protect the big four from litigation on the basis of EU net neutrality legislation, surely the best way forward is to use this excellent Bill.

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[Baroness Shields]

I thank the noble Lord for his intervention. The commitment to this is voluntary and clear. Of course it will take time, but it is evolving. The action of the industry is voluntary and the process has to be consultative. The UK Council for Child Internet Safety meets and provides an evidence base to the ISPs and the industry about what we know and how they should act—it is doing that. We are just talking about the vehicle to get us there, and we think we have a better approach. We will consult on age verification and bring something forward, enshrined in law or in whatever way we think is best, to ensure that the filters regime stays in place.

We have re-opened the conversation about many issues today. This particular amendment was on whether we should specify that Ofcom’s reports on filtering content and age-verification policies are set out as a duty. We are way beyond that at this stage. Ofcom is about to produce a report later this month that does just that. Therefore, the Government’s perspective is that this is already being done by Ofcom and there is no need to enshrine it in law.

[Lord Morrow]

My Lords, I am very grateful to all those who have spoken in this debate today. I have listened intently to what has been said by all noble Lords and, in particular, by the Minister. I detect real concern around the Committee on this very important matter. It has been very useful to reflect on the need to engage with all ISPs, both on the filtering regime to help keep children safe online and on Ofcom’s reporting role. The Minister has seen that there is a real concern about the issue, and I wonder whether she might be willing to meet concerned Peers to discuss the way forward on this important matter.

[Baroness Shields]

I would be absolutely delighted to meet noble Lords on this matter. In fact, maybe some noble Lords might want to join us at the UK Council for Child Internet Safety, where many of these issues are raised and discussed, and where evidence-based teams go off and research then report back with excellent suggestions that are taken on board by industry. That is a collaborative approach and ensures that, as issues arise, we can react—as an industry, as government and as NGOs, working in partnership.

[Lord Morrow]

I thank the Minister for her very positive response and look forward to that meeting in the not too distant future. At the outset, I made it clear that this was a probing amendment. Therefore, for the moment, I beg leave to withdraw my amendment.

Amendment 3A withdrawn.