Digital Economy Bill

Lord Paddick Excerpts

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

[Baroness Howe of Idlicote (CB)]

My Lords, as I said at Second Reading, I am pleased to be speaking today on a subject that I have regularly brought before your Lordships’ House over recent years in my several online safety Bills—the importance of protecting children online, which is very much today’s subject. I have tabled my probing Amendment 55 so that the Government can set out their plans for which organisations will act as the age verification regulator for which sections of this Bill, as this is crucial to ensure the child protection provisions of Part 3 are successfully implemented.

My amendment would designate the British Board of Film Classification as the age verification regulator for the whole of this process. I know that many in this House and the other place were delighted to hear the Government’s announcement that the BBFC will be the notification regulator for Part 3, a position for which it will be formally designated later this year. I am sure we can all agree that it will bring a level of expertise to that role which will be really invaluable. The use of the term “notification” regulator, however, suggests that the BBFC will provide only part of the regulatory function and that another kind of regulator will have a role to play. Indeed, this was backed up by the BBFC, which stated in its evidence to the Public Bill Committee in another place that it did not intend to have any role in enforcement under Clauses 21 and 22 on fines and informing payment providers and ancillary service providers.

This same message is repeated in the Explanatory Notes:

“The BBFC is expected to be the regulator for the majority of the functions of the regulator (including issuing notices to ISPs to prevent access to material), but is not intended to take on the role of issuing financial penalties and enforcement notices to non-compliant websites”.


This begs an important question to which the Minister must now provide an answer. Who will be the other regulator? It is one thing to have not clarified this at the point of introducing the Bill. It is, however, quite another for the Bill to have passed entirely through one House and be well on its way through another without any update.

In asking this question, I should say that I was very pleased to see that the Government have said that the BBFC will assume the enforcement role in relation to Clause 23, which was introduced on Report in another place. This, however, still leaves questions about the enforcement regulator for Clauses 21 and 22 and how the enforcement regulator in these clauses will interact with the BBFC in its role as “notification” regulator.

In its report on the Bill, the Delegated Powers and Regulatory Reform Committee criticised the lack of information about the regulator, saying:

“The decision as to who to appoint as regulator should be taken before, not after, a Bill is introduced so that it can be fully scrutinised by Parliament. This is especially because the regulator will have important and significant powers conferred by Part 3 which include the ability to impose substantial civil penalties”.


Parliament should know who the enforcement regulator will be, since it will be able to impose these substantial penalties.

Your Lordships’ House should be informed how the enforcement regulator, assuming the Government are still planning on a second regulator, will operate with the BBFC in terms of the mechanics of deciding whether to issue a fine, an enforcement notice, or notice to internet service providers to block certain sites, and how the two regulators will produce consistent guidance for this part of the Bill. Ofcom would be an obvious option for enforcement, but last November it made it clear that it does not want the role. I ask the Minister: who do the Government have in mind? When will he bring that information to the House? I look forward to hearing what he has to say.

[Lord Paddick (LD)]

My Lords, I apologise to the Committee for not taking part in Second Reading. Having led on the Investigatory Powers Bill and the Policing and Crime Bill I was hoping for some time off for good behaviour, but apparently a policeman’s lot is not a happy one, even when he has retired.

My noble friend Lord Clement-Jones and I have Amendment 55B in this group. The first thing to say is that we on these Benches believe everything that can be demonstrated to be effective should be done to restrict children’s access to adult material online. We also believe that everything should be done to ensure that adults can access websites that contain material that it is legal for them to view. That is why Amendment 55B would require the age-verification regulator to produce an annual report on how effective the measures in the Bill have been in general in reducing the number of children accessing adult material online and how effective each enforcement mechanism has been. We also share the concerns expressed by the noble Baronesses, Lady Jones of Whitchurch and Lady Howe of Idlicote, on these provisions having been made somewhat at the last minute, and that they may not have been completely thought through.

The aims of the Bill and the other amendments in the group are laudable. The ideal that there should be equal protection for children online as there is offline is a good one, but it is almost impossible to achieve through enforcement alone. We have to be realistic about how relatively easy it is to prevent children accessing physical material sold in geographic locations and how relatively difficult, if not impossible, it is to prevent determined children accessing online material on the internet, much of which is free. An increasing proportion of adult material is not commercially produced.

That is not to say that we should not do all we can to prevent underage access to adult material, but we must not mislead by suggesting that doing all we can to prevent access is both necessary and sufficient to prevent children accessing adult material online, the detail of which I will come to in subsequent amendments. Of course internet service providers and ancillary service providers should do all they can to protect children, but there are also issues around freedom of expression that need to be taken into account.

[Baroness Kidron (CB)]

My Lords, in light of these and some later amendments, I want to raise the matter of ancillary service providers. My understanding is that social media platforms continue to argue that they do not fall within the definition of ancillary service providers and are seeking confirmation from government that they have no role to play in preventing children accessing pornography online.

I am aware that the Minister stated at Second Reading:

“The Government believe that services, including Twitter, can be classified by regulators as ancillary service providers where they are enabling or facilitating the making available of pornographic or prohibited material”.—[Official Report, 13/12/16; col. 1228.]


I was pleased to hear him say that, but I would like confirmation that it remains the Government’s position. Unless such platforms are included, I simply do not understand what Part 3 of the Bill hopes to achieve.

I am unconvinced that it is possible to remove all adult content from the purview of children, but it is imperative to make it clear to young people that viewing adult sexual content is a transgressive act and not a cultural norm, so, at a minimum, it should be as difficult as reaching the top shelf in a newsagent or being underage in a pub. That is imperative for reasons I set out in great detail at Second Reading, so I will not repeat them here but simply say that children and young people are turning in large numbers to pornography to learn about sex, with unhappy consequences. Often violent, mainly misogynistic, unrealistic adult male fantasy is not a good starting point for a healthy, happy, consensual sex life.

I would have preferred for the age verification system to be fully thought out, prototyped and beta-tested before it came to the House in the form of legislation. None the less, I agree that Part 3 is a valiant attempt to stem the flow of adult material into the hands and lives of children. In the absence of a better, more thought out plan, I support it. But if this is the path we are taking, we must be clear in our message: this material is unsuitable for those under the age of 18.

The BBFC says that it intends to take a proportionate approach to its new role and will target the top 50 adult websites as accessed by viewers in the UK. Its research shows that 70% of all those who access such sites in the UK visit the top 50. Among children, concentration among those top sites is even higher. In that respect, I understand that age-verifying 70% of adult material websites sends a clear message.

However, a brief search on Twitter, which has a joining age of 13, shows that commercial pornography is readily available, with popular accounts attracting hundreds of thousands of followers. Many of those who access pornographic social media accounts do not publicly follow them, so it is more than likely that the follower figures are dwarfed by the number of actual viewers. In the case of younger viewers, such platforms if accessed via an app leave no browser footprint that might be discovered by parents—a very attractive proposition.

If social media companies provide alternative access to the same or similar pornographic material with no restriction, surely the regulator should be entitled to take the same proportionate approach and target pornographic social media accounts with similar viewer numbers to those for adult websites. For most young people, social media platforms are the gateway to the internet. Unless they are to be included within the definition of ASPs, neither the problem of young people accessing pornography nor the ambition of setting a social norm that puts adult sexual material beyond the easy reach of children and young people will be achieved. It will simply migrate.

I note that social media platforms are not homogenous and that some, including Facebook and Instagram, already take steps to prevent pornography being posted and act quickly to take it down when it does go up. It is disappointing that not all platforms take this approach. I do not want to focus on Twitter, but noble Lords might like go to the account, @gspot1177, with its 750,000 public followers, which has been publishing pornography with impunity since 2009. Surely it is necessary to bring this into scope of the regulator. Nobody is claiming that the measures set out in the Bill will prevent 100% of pornography being seen by children and I understand Ministers’ arguments that doing something is better than doing nothing, but I am concerned that in the lack of clarity about what does and does not fall within the definition of ASP there may lie a lack of political will about holding certain stakeholders to account.

I would love to hear from the Minister whether major social media platforms including Tumblr and Twitter have confirmed to the Government how they would respond to requests from the BBFC to withdraw services from a non-compliant site—and whether his statement at Second Reading that social media platforms may be considered ASPs by the regulator still stands.

Digital Economy Bill

Lord Paddick Excerpts

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

[Lord Paddick (LD)]

My Lords, I have Amendment 69A in this group. Before I discuss that I wish to address a few remarks to the other amendments in the group. I understand the concerns of the noble Lord, Lord Morrow, about enforcing fines on people who are not within the United Kingdom. However, I do not understand how his Amendment 58 would be any more effective if the payment service provider or the ancillary service provider is also outside the UK. Perhaps when he addresses the Committee shortly, he will also indicate to me, because I am a little confused, the difference between his provision in paragraph (a) of proposed new subsection (2) in his Amendment 65, where enforcement of the age verification regulator’s decision on the payment service provider or ancillary service provider is implemented by way of an injunction, and the proposals suggested for a similar process under Amendment 66.

On Amendment 69A, as I mentioned on an earlier group, there are increasing amounts of adult material available on the internet that is not commercial in any sense. Much of it is taken from commercial websites but there is no reference to which website the material has come from, and therefore no suggestion that it is intended as a lure or as providing a link to a commercial site.

To take up issues just raised by my noble friend Lady Benjamin, increasingly there is pornographic material that might be described as “home videos”, either those produced by what might be described as exhibitionists or others where innocent members of the public, including some celebrities in recent years, are deceived into performing sexual acts to their computer camera not knowing that they are being recorded for subsequent posting on to publicly available websites. There is also the issue that Liberal Democrats have been very strong in trying to tackle: those instances of “revenge porn” where disgruntled exes post compromising videos online. From what I can see, that type of material is not covered by the Bill, as there is no commercial aspect and no ancillary services involved. There is confusion about what “ancillary service providers” means. In his remarks on an earlier group of amendments, the Minister talked about pornographers to whom ancillary service providers provide their services. In the case of self-generated or home-grown obscene material, though, there is no pornographer that the website is providing a service to, at least in one sense. Perhaps the Minister will clarify that.

The noble Baroness, Lady Kidron, spoke about the fact that there are some social platforms, such as Facebook and Instagram, which are very good at taking down inappropriate material: they have strict rules about obscene material posted on their platforms. However, there are particular difficulties here with platforms such as Twitter and Tumblr. Although 99% of the content is innocent and of no harm to children, or anyone else, there are Twitter feeds and Tumblr pages that have adult material on them. Those are not simply links to porn sites, but actual videos on the actual pages or Twitter feeds. While most have a warning on the front page—NSFW, or not suitable for work, or 18+ only—that is usually also the page that has already got pornographic images on it. Even on Twitter, it may not be clear that the media content is pornographic until one has accessed those images. Clearly, there is difficulty in enforcing age verification on those platforms when the overwhelming majority of the material contained on them is not adult material.

What I believe needs to be explored is making a tool available to those who want to use social media for adult material, so that when the Tumblr page or Twitter feed is accessed, the user is diverted to a page that warns what lies behind and provides an option to divert away from the adult material. That alternative page could be a government-specified warning about the impact that pornography can have on young people, advising where support can be given and so on: the equivalent to the warning messages that are now printed on cigarette packets, for example. Alternatively, the Government could by regulation insist that such a tool was made available to ensure such a warning page is placed on accounts, as the noble Baroness, Lady Benjamin, mentioned just now, so that people are alerted that such pages or Twitter feeds have adult content on them. It falls short of requiring age verification or blocking such accounts, which I am sure Twitter and Tumblr would resist, but it would still address an important issue.

In its useful briefings on this aspect of the Bill, the NSPCC says there is a particular problem with children who accidentally stumble across adult material. This would go some way to addressing that issue. The NSPCC says a particular problem is pop-up advertisements from commercial pornography sites, which regrettably this amendment does not address—nor is that addressed by any other part of the Bill. Will the Minister tell the Committee whether there is any move by the Government to address that issue?

It is one thing for the BBFC to block a porn site that does not have age verification; it is quite another to suggest—as the Minister said on an earlier group of amendments—that we block a platform such as Twitter, if it fails to do the same for a handful of feeds that contain adult material. I accept that the amendment as drafted is probably far too wide in the powers it gives to the Secretary of State, but it is important that we do not ignore non-commercial adult material, which in increasingly a problem on the internet.

[Baroness Howe of Idlicote (CB)]

My Lords, my amendment to Clause 17, which noble Lords have already discussed, raised the importance of knowing how the Government plan to enforce the Bill through the appointment of one or more age verification regulators. The amendments tabled by the noble Lord, Lord Morrow, and the noble Baroness, Lady Benjamin, raise similar questions about the mechanics and processes of enforcement and I am very glad to be able to speak in support of Amendments 63, 56, 58 and 65.

On Amendment 63, I agree completely with everything that the noble Baroness, Lady Benjamin, has said. If we are not to have real clarity about the identity of ancillary service providers in the Bill, the idea that we can make do with optional guidance is unsustainable. It must be made mandatory. On Amendment 56, I support the call from the noble Lord, Lord Morrow, to hear a full explanation from the Minister of the mechanisms for enforcing the fining provisions in Clause 22 in other jurisdictions, which were alluded to by the Minister in another place.

In the time available today, however, I would like to focus particularly on Amendments 58 and 65. Any noble Lords who were in your Lordships’ House when we debated the Gambling (Licensing and Advertising) Act 2014 will know that I had a major reservation about the Government’s plans to rely on payment providers to enforce the licensing provisions applying to foreign websites. I think that the noble Lord, Lord Morrow, has demonstrated that my reservations were well founded. In response to written Parliamentary Questions I tabled last year, the Government said that, since the law came into effect in 2014, the Gambling Commission has written to approximately 60 gambling websites reminding them of the law, and payment providers have been asked to block payments 11 times. Given the size of the global online gambling market that can access the UK, that surely seems tiny. If we are supposed to be reassured, I suggest that the Government should think again.

The noble Lord, Lord Morrow, also raised questions about why the Government think that ancillary service providers will act to withdraw their services. I recognise that the Government want to disrupt the business models of pornographic websites, but for some companies, to withdraw their services would be disrupting their own business models. They may be small businesses, not major international organisations such as Visa and Mastercard. In such cases, it would not be in the interests of the business to act. They cannot be expected to do so unless it is made an explicit legal requirement with a clear sanction. My concerns about the absence of any sanction or requirement to act are readily acknowledged by the Government’s own publications, in a manner that I find rather unnerving. In the press release the Government issued when they announced their plans for IP blocking, they said they were,

“also seeking co-operation from other supporting services like servers to crack down on wrongdoers”,

and in the notes to the release said:

“Websites need servers to host them, advertisers to support them, and infrastructure to connect them. With the international and unregulated manner in which the Internet operates we cannot compel supporting services to be denied but the regulator will seek to gain cooperation from the industry”.


They seem to be hoping that, although they have inserted this age verification requirement into statute, it is acceptable to back it up with what is effectively a non-statutory, half-hearted good will enforcement mechanism. Lest anyone doubts this, they should review the Government’s evidence to the Delegated Powers and Regulatory Reform Committee about the delegated powers in the Bill. The Government reported on the guidance to be issued under Clause 22(7) about who will be given a notice about non-compliance of pornographic websites. Importantly, the Government said:

“The recipients of those notices can decide whether or not to take action. Accordingly it is considered that no Parliamentary procedure is necessary”.


It seems that the Government hope that by placing the obligation for age verification in statute, we will congratulate them on fulfilling their election manifesto commitment, without—at least as far as Clause 22 is concerned—any credible commitment to enforcement.

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Moved by

[Lord Paddick]

68: After Clause 23, insert the following new Clause—
“Anonymity
(1) Age-verification providers must be approved by the Age-Verification Regulator.(2) In this section an “age-verification provider” means a person who appears to the Age-Verification Regulator to provide, in the course of a business, a service used by a person to ensure that pornographic material is not normally accessible by persons under the age of 18.(3) The Age-Verification Regulator must publish a code of practice to be approved by the Secretary of State and laid before Parliament.(4) The Code must include provisions to ensure that Age-Verification Providers— (a) perform a Data Protection Impact Assessment and make this publicly available,(b) take full and appropriate measures to ensure the accuracy, security and confidentiality of the data of their users,(c) minimise the processing of personal information to that which is necessary for the purposes of age verification,(d) do not disclose the identity of individuals verifying their age to persons making pornography available on the internet,(e) take full and appropriate measures to ensure that their services do not enable persons making pornography available on the internet to identify users of their sites or services across differing sites or services,(f) do not create security risks for third parties or adversely impact security systems or cyber security,(g) comply with a set standard of accuracy in verifying the age of users.(5) The code must include provisions to ensure that publishers of pornographic material take full and appropriate measures to allow their users to choose the Age-Verification Provider of their preference.(6) Age-Verification Providers and publishers of pornographic material must comply with the code of practice.(7) To the extent that a term of a contract purports to prevent or restrict the doing of any act required to comply with the code, that term is unenforceable.”

[Lord Paddick]

The amendment is in my name and that of my noble friend Lord Clement-Jones and the noble Baroness, Lady Jones of Whitchurch. I have to say that it is only because we were quicker on the draw that I am leading on this amendment rather than the noble Baroness.

As I have previously alluded to, we believe that age verification is not sufficient protection for children on the internet. It can easily be circumvented, and it would be very difficult to place age verification on such platforms as Twitter and Tumblr. In relying on this mechanism, there is a danger of diverting attention away from other important and effective methods of addressing the issue of children accessing adult material online. Despite our misgivings, we believe that everything should be done to protect the privacy of those who have their age verified to enable them to access adult material on the internet. I am grateful to the Open Rights Group for its briefing and suggested amendment on this issue, which is the wording we have used for our amendment.

Age verification systems almost inevitably involve creating databases of those who are accessing adult material. It is completely lawful for those who wish to look at adult material to access these websites, but it is a sensitive area and many will be wary about or even deterred from accessing completely legal websites as a result. Security experts agree that unauthorised hacking of databases is almost inevitable, and the advice to organisations is to prepare contingency plans for when rather than if their databases are accessed by those without authority to do so. The consequences of breaching databases containing sensitive personal data can perhaps be most starkly illustrated by the public exposé of the personal details of those who were members of Ashley Madison, which reportedly resulted in two suicides. The risk to privacy can be reduced if the age verification regulator approves minimum standards for age verification providers. These are set out in the amendment.

The amendment suggests that the age verification regulator publish a code of practice, approved by the Secretary of State and laid before Parliament. The code of practice should ensure that everything possible is done to protect the privacy of users and to allow them to choose which age verification system they trust with their sensitive personal information. For example, some websites provide a service that enables users to prove their identity online, including their age, for purposes unconnected with access to adult material but which could also be used for that purpose. The full extent of the provisions are set out in the amendment, and the evidence in support of the amendment is set out in the Open Rights Group’s updated briefing on the Bill.

The Constitution Committee addressed this issue in its 7th report of 2016-17:

“We are concerned that the extent to which the Bill leaves the details of the age-verification regime to guidance and guidelines to be published by the as yet-to-be-designated regulator adversely affects the ability of the House effectively to scrutinise this legislation. Our concern is exacerbated by the fact that, as the Bill currently stands, the guidance and guidelines will come into effect without any parliamentary scrutiny at all. The House may wish to consider whether it would be appropriate for a greater degree of detail to be included on the face of the bill”.


That is exactly what this amendment attempts to do. I beg to move.

[The Earl of Erroll]

My Lords, I want to say a few words because I have been working on the issue of age verification for a long time. I became interested in it when it became apparent a couple of years ago that it was going to come to the top of the agenda. For the last year or so, the Digital Policy Alliance, which I chair, has been working with the British Standards Institution to produce a publicly available specification—PAS 1296—exactly on this issue. Its whole point is to enable anonymised verification of the attribute of your age. People have said that you would have to give the information to the adult content site, the porn site, but you do not necessarily need to.

There are two stages: when the child, or the adult, first arrives at the site; and, if they are allowed into the site, what they then do. At the point when they come to the front page of the site, where they should be asked to prove their age, there should be an option—and this is the point about anonymity—that allows them to bounce off, with a token, to an age verifier. I have on my smartphone, for instance, one from Yoti. I can identify myself to Yoti; it knows about me and can send an encrypted token back to the website, which does not contain any identity information at all—purely the fact that I am over 18. If the regulator later needs to unravel the token because it appears that rules have been breached, it is possible to present the token and start unravelling it—but only with proper powers. The point is that a hacker cannot find out who presented that token. So it is possible now to do what is necessary.

That answers the point made by the noble Lord, Lord Maxton. The problem with an identity card is that it will identify you. If you gave your identity to one of these websites and it happened to be hacked, like Ashley Madison, and if you were a Cabinet Minister—or even like most of us here, actually—your career would probably be in ruins. So I think it is essential that people be permitted anonymity. That is why, I am afraid, I am not in favour of the identity card method. There are other similar ways of doing the same thing—

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[Lord Ashton of Hyde]

My Lords, I am grateful to all noble Lords again, particularly the noble Earl, Lord Erroll, for the teach-in.

Amendment 68 calls for the regulator to approve age verification providers and to publish a code of practice with which those providers must comply. This was similar or identical to the amendment that was rejected in the other place in Committee and on Report. I am afraid that the Government do not consider this clause necessary. However, I can assure noble Lords that we approach this issue with the utmost seriousness.

Clause 15(3) already requires the regulator to publish guidance about the types of arrangements it will treat as being in compliance. As the noble Earl explained, the technology is with us and the providers of age verification controls will be subject to data protection laws. The BBFC is already in discussion with the Information Commissioner’s Office to ensure that best practice is observed. It has indicated that it will give the highest priority to ensuring that the guidance it issues reflects data protection standards. The Government and the BBFC are also in discussion with the Information Commissioner’s Office on privacy and data requirements to ensure that the appropriate guidance is issued, as they are experts in this field.

The Delegated Powers and Regulatory Reform Committee has additionally made a recommendation on the approach to the types of arrangements for making pornographic material available that the regulator will treat as complying with Clause 15(1). We are considering whether we can address those concerns and, as I said, will respond as soon as possible.

As the noble Earl explained, innovative age verification solutions are coming to market, and we want to ensure that the regulator is enabled to make a determination as to the sufficiency of different and new controls. As noble Lords know, there are existing privacy and data security protections provided by the Data Protection Act 1998, administered by the Information Commissioner’s Office. The Act established a framework for the protection of personal data, balancing the privacy rights of individuals with the legitimate needs of organisations to make use of such data. It ensures respect for individuals’ rights to privacy and keeps their personal information secure from abuse. The Act ensures that data are handled safely and securely. It is right therefore that we do not seek here to duplicate this legislative and regulatory framework. However, we agree that we must ensure that it is built into the age verification process in a meaningful way and, as I have said, we will provide a response to the DPRRC recommendation on this matter. In the meantime, I hope the noble Lord will withdraw the amendment.

[Lord Paddick]

My Lords, I am very grateful for noble Lords’ contributions to this short debate, particularly to the noble Earl, Lord Erroll, for illustrating how a system as set out in our amendment already exists. I join my noble friend Lord Clement-Jones in thanking the noble Earl for his work with the industry. I thank my noble friend Lady Benjamin for driving him on, apparently. I also thank the noble Baroness, Lady Jones of Whitchurch, for her support for the amendment.

The Minister said that the amendment was not necessary despite the Constitution Select Committee believing that such an amendment is necessary. On that basis, I cannot give an undertaking that we will not return to this issue on Report. However, at this stage, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

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[Baroness Kidron (CB)]

My Lords, since the Bill introduces age verification, it follows that children must be informed users. Not only does that make it more likely that they observe it but it would give teachers the necessary opportunity to discuss what they might find a difficult subject. Like others, I believe that this is a tiny part of a broader picture.

As some noble Lords know, I regularly speak in schools about pornography but more broadly about young people and their relationship to the internet. I have to report to the Committee that they have a palpable appetite for better digital education, not only SRE but a much broader digital education. By that, they mean a comprehensive understanding of the purposes and methods by which platforms and businesses interact with them, their rights as consumers and citizens and their urgent desire for some code of conduct. Interestingly, they want a code of conduct that covers their behaviour to each other. They also want a code of conduct that would determine the behaviour of businesses and platforms towards them. Above all else, you find what they want is a single moral landscape that recognises that the distinction between online and offline is completely immaterial to them.

Part 3 of the Bill deals with a single issue and this amendment deals with a narrow piece of learning. But the young people I speak to yearn for more. They repeatedly complain that e-safety is narrow, repetitive, badly delivered, and comes in the wrong lessons and from the wrong teachers. Although they themselves have fast fingers, many if not most have little idea of the workings of the technology they are using, let alone the full gamut of risk, from fake news to fake friends. A young person who can spot spam without clicking, is one less likely to see the unwanted adult sexual content that is our subject today. A young person who is knowledgeable about the way their personal data are collected is less likely to make bad decisions about what, where and when to give them up.

Children are not simply the objects of our concern; they are participants in their own good outcomes. We must learn to listen to their stated needs, not relentlessly pursue an adult agenda. I direct the Minister to the recent report of the Children’s Commissioner, Growing up Digital; to the report published this week, The Internet on our Own Terms, which captures the policy recommendations of young people; and to the evidence collected by the Communication Committee’s inquiry “Children and the Internet”, all of which has a great deal to say about the value, nature and scope of the education that children need.

In supporting this amendment I ask the Minister not only to recommend it to colleagues, but to listen very carefully to young people about the scope of the learning and the manner of teaching that they feel makes them secure and able users of the internet, which ultimately will help them to be contributors to the cultural shift that must accompany the legislation that is in front of us.

[Lord Paddick]

My Lords, I shall speak very briefly, as my name is on this amendment, to support what other noble Lords have said and echo the noble Baroness, Lady Jones of Whitchurch, in that we also tried to table a broader compulsory sex and relationship education amendment to the Bill but were told it was out of scope.

We have to address the fact that despite our best efforts young people, and indeed very young children, will be confronted with inappropriate images and inappropriate adult material on the internet, and they need to be taught how to respond. They need to be taught to turn it off immediately and to tell their parents about what is happening. Older children need to be told that the way in which actors in pornographic films treat each other is not the way that we expect our young people to treat each other.

[Lord Ashton of Hyde]

My Lords, I think we can all agree—and I certainly do—that this amendment has expressed very worthy concern about the safety of young people growing up in modern Britain today, and it is of great interest to many Members of this House and Members of the other place too.

As we have always said, age verification is not a panacea, and should certainly not be seen as the limit of child online protection activity in which the Government and key stakeholders are involved. Age verification controls are a part, but not all, of the approach to protecting children from potentially harmful content online. Education, awareness-raising with parents and carers, and equipping children with the resilience and tools to deal with their online experiences are critical. So I can agree with much of what the noble Lords, Lord Storey and Lord Paddick, and the noble Baroness, Lady Kidron, have said on this subject.

Keeping Children Safe in Education, the statutory guidance for schools and colleges on safeguarding children and safer recruitment, sets out that governing bodies and proprietors should ensure that children are taught about safeguarding, including online, through teaching and learning opportunities as part of providing a broad and balanced curriculum.

As my honourable friend the Minister of State for Vulnerable Children and Families, Edward Timpson, has said in previous debates during the passage of the Children and Social Work Bill, this Government heard the call for further action on improving the quality of PSHE provision in schools and we are fully committed to exploring all the options available. I understand that this will come up in the Report stage for that Bill in the other place, where the Government committed to providing an update to Parliament on the issue.

This Government are clear that to improve provision any change must be made in the right way with proper consideration of all the issues, including online safety. I assure the Committee that the Government are committed to handling this important matter well. We intend to work with stakeholders and listen to the voices of young people over the coming months. With that assurance, I hope the noble Baroness can withdraw her amendment.

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[Lord Stevenson of Balmacara (Lab)]

My Lords, we spent a considerable amount of time earlier in Committee on the question of the powers that would be allocated to any regulators appointed under the Bill. We did not spend much time on who the regulators would be, although some concerns were raised. However, over the weeks and even today, we have increasingly gathered that the Government’s intention is that the British Board of Film Classification, the BBFC, should be given a major role in the work discussed in this particular part of the Bill.

I will start with the report of the Delegated Powers and Regulatory Reform Committee, which has already been extensively referred to in the debate. It raised questions about what the position would be of any regulator appointed under the powers being taken in the Bill. It said, for example, that the age verification regulator—without naming that regulator—will have powers including,

“to require the provision of information … impose substantial civil penalties … take steps to direct internet service providers to block access to material … and … publish guidance”.

Of course, there is a quite a lot in the report that we have already discussed about how and under what conditions a body such as the regulator that will be appointed should be able to publish guidance, particularly if it is on behalf of the Secretary of State and has not been subject to discussion within Parliament.

Without having any expert knowledge of the work of the committee, I think that, had they known directly who the regulator would be, they might also have raised the issue in my amendment: the status and constitution of the body that is likely to be appointed. I assume that the comments made by the Minister earlier in this Committee session that the BBFC is to be appointed will be carried forward in due course. If I am wrong, obviously the points I make are still valid—although they may apply to a different regulator of a different nature.

The issue I want to pick up comes in paragraph 15 of the DPRRC report, which talks about a memorandum exchanged between it and the department in relation to the powers that would be applied to the regulator. It starts by saying where those powers are found: in Clause 17. It explains that the department feels that it is important to retain flexibility as to who is to be appointed to ensure that the right person or persons are appointed as a regulator. Of course, that point has probably now been overcome by time. It also makes the point that the functions could be regulated. Indeed, we had earlier recommendations that suggested quite persuasive arguments for the regulatory burden to be carried by more than one body. I hope that we will be able to make progress on this as we move through the Bill.

It is clear that if the regulator is to be the BBFC, the work of which is really the basis for the classification system that will be relied on in the legislation, it has a designation to do only part of its work under the Video Recordings Act 1984. It is important to pause here. The amendment that I am putting forward asks the Government to think hard about the correctness of a decision to appoint as a regulator a body that is only partially covered by statute at present. Does the Minister think it right that a private company over which the Secretary of State has limited powers in relation to who is appointed to that body should take on the sorts of responsibilities on civil penalties and the blocking of activity, as well as regulatory functions?

As the amendment suggests, does he not think that it might be more appropriate to look carefully at the body that takes on these responsibilities and to propose, as I do, that it should be either a body corporate or subject to more extensive powers of direction as to who is appointed and how any appointments are made? If that were the case, we could have more confidence in the ability of that body to make the right decisions in relation to all the functions that it has, which extend quite widely, and in particular to age verification, which is the subject of the Bill.

The British Board of Film Classification is a private company. Its number is 00117289. I checked today on the company’s register and, limited as the information is, it is quite revealing. It was first incorporated on 17 August 1911. So for nearly 107 years it has been a monopoly operator in a private capacity, acting in some senses on behalf of the Government in some of its functions. As I said, there are statutory functions in relation to video and now DVD, but none to any great extent in relation to film classification, which is the basis of the work that is being carried on in the Bill.

It is well known that, in its original form, the BBFC was called the Incorporated Association of Kinematograph Manufacturers Ltd. It was created by the then manufacturers of projection equipment to protect the investment that they made in cinemas up and down the country against the watch committees, which had sprung up before but were now displaying an active concern about the impact of films on the morals of the population. This still exists. Technically, films are licensed for exhibition in the United Kingdom only through the local authorities. They normally take the advice of the BBFC. That was a clever move by the manufacturers of the equipment, which was at risk, to ensure that they stepped in ahead of the possibility of moral outrage by creating a situation in which they said and alleged that people would not be shocked by the sorts of thing that might cause alarm and despondency around the country. At that stage they could not have anticipated that Life of Brian is still banned in Glasgow—I think that I am right in saying that. That may or may not be of interest to anybody in the Committee, though perhaps it woke your Lordships up a bit. That is the kind of thing that can come from this rather unfortunate arrangement.

I will recap slightly. This private company last year made a profit of approximately £1.5 million on a turnover of £5.4 million. It owns freehold property not a million miles from here worth quite a lot of money. It has a board appointed by itself and a membership that is not disclosed in the company’s records. It operates in an area of considerable complexity and certainly some moral concern—and it is about to be given additional statutory responsibilities. Those are the main points that I want to make in this amendment.

I do not know whether what I propose in this amendment is right. It is an issue that should be thought carefully about before we move further. For instance, within the BBFC structures at the moment there is no appeal system. The regulatory functions of the Secretary of State are limited; they are mainly related to video and not to film. The powers that are about to be referred to it are mentioned by the Delegated Powers Committee as being of concern, so we need to find a way through that. We have yet to see how that will happen because we have not yet had the Minister’s response. I beg to move.

[Lord Paddick]

My Lords, I support the amendment but not necessarily for the reasons articulated by the noble Lord, Lord Stevenson. Our concern is that if the Government started to appoint members of the British Board of Film Classification and therefore it was not independent of government, we would have a situation in which the Government would potentially be involved in deciding which films or material should be censored or not, which is not a path we would like to go down, particularly in the current climate of populism and the historical issues that that raises.

[Lord Arbuthnot of Edrom (Con)]

My Lords, the noble Lord, Lord Paddick, has just given the speech that I was rather expecting the noble Lord, Lord Stevenson, to give. The amendment suggests that the Government should be completely out of the running of the BBFC, yet in his very interesting and important remarks, the noble Lord, Lord Stevenson, said that he was a bit concerned that the Government should think it right for this private company, over which the Government have very little power, to have such responsibilities.

The noble Lord, Lord Stevenson, was right to say that the current position is that the BBFC appoints itself. The council of management is chosen from leading figures in the film industry; that council chooses the president and the director, and then they do this important work. If we are to change that, we need some evidence that either there is a risk of the Government interfering in these decisions or that these decisions are being got wrong in some respect. I am not aware that these decisions are being badly taken. As far as I can tell, the BBFC is doing a pretty good job, and until we are clear what regime we want to go to, I would rather leave the law as it is.

Digital Economy Bill

Lord Paddick Excerpts

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

[Lord Framlingham (Con)]

My Lords, I, too, shall be extremely brief because this matter has now been dealt with in great detail by a number of speakers. Few issues that come before your Lordships’ House make me quite as angry and distressed as this. Given the role that Parliament plays in the welfare of our nation and our children, it saddens me hugely that we are even debating it as we are. I understand why we have to but it is an enormous comment on the state of our country. It took me a while to realise that we now accept pornography as an industry. It is an acceptable industry—not quite like motor cars or other things but it has become acceptable—and I think that says an awful lot about the state of our nation today.

I have spoken before in this House about how many thousands of primary school children watch hardcore porn on a regular basis. That should be cause for concern for us all. The noble Earl made the point about Fifty Shades of Grey—which I have to say immediately that I have neither read nor seen—but that makes the point for us, does it not? We are talking about a medium into which our young children slip away from us—we do not know where they have gone. It is a world we cannot join them in. I think it is a dreadful world—interesting, fascinating, fun, in some ways; but in other ways, absolutely dreadful. Those primary school children are not going to go out to Waterstones and buy Fifty Shades of Grey or pay for a ticket to go the cinema to watch the film of it. They are going to their bedrooms to slip into this other world and watch all these horrible things we are talking about.

How often have I heard us say in this House that the welfare of the child is paramount? We say it time after time, relating to one Bill after another. If we really mean it when we say it, we should be much tougher on issues such as this. That should be reflected in how we vote today. I do not know what will happen to the government amendments but if we divide on them, I shall vote against them. I shall certainly support Amendment 25YD, in the name of the noble and learned Baroness, Lady Butler-Sloss. I hope very much that the House will show what it really thinks about these issues and support that amendment as well.

[Lord Paddick (LD)]

My Lords, the debate this afternoon shows the importance of noble Lords participating in every stage of the Bill. My understanding of what has happened here is that the Bill was never intended by the Government to deal with protecting adults from pornography; it was to fulfil a manifesto commitment to protect children from accessing pornography. At a very late stage in the other place, a Conservative Back-Bencher brought protection against adult pornography into the Bill. The mess that we are currently in is completely down to the Government accepting that amendment.

The current law does not allow anybody to take down either prohibited material or extreme pornography from the internet with the exception of child pornography, which is dealt with separately through the Internet Watch Foundation and so forth. The Government’s problem, having accepted that amendment in the other place to do with prohibited material, is that people are losing confidence in such a definition of pornography. While prohibited material is not allowed in films and DVDs classified by the BBFC, that material is not prosecuted as obscene by the Crown Prosecution Service. The law on what is and is not obscene—on what it is lawful to have and not lawful to see and possess—is in a mess. That is why we are in this situation.

The Government have tried to remedy the situation by picking on something that is not disputed: a definition of obscenity that is a concrete foundation on which to build for the future. They have therefore decided to replace this definition of prohibited material that is falling into disrepute—

[Lord Gordon of Strathblane]

Can the noble Lord produce a shred of evidence to say that this definition has fallen into disrepute? I see no evidence of it in the yearly polling done by the BBFC on its classifications.

[Lord Paddick]

I will try to say it again more clearly. It is the fact that the Crown Prosecution Service is not prosecuting people for possessing prohibited material. That brings the definition of prohibited material into disrepute, as far as the law is concerned. I am not quite sure what it is that the noble Lord does not understand about it being brought into disrepute in that respect.

[Baroness Butler-Sloss]

Why cannot the CPS just change its guidance?

[Lord Paddick]

Indeed. What the Minister said backed up what the noble Lord, Lord Browne of Belmont, said about the criticism of there being no public consultation. There has been no public consultation about introducing adult pornography into the Bill, in the form of prohibited material. There needs to be a public debate on this to decide whether the British Board of Film Classification’s operation, where it does not issue certificates for prohibited material, is the right standard or whether the CPS standard is right. There has not been a public debate about that, and we need one.

Having said all that, I entirely agree with the noble and learned Baroness, Lady Butler-Sloss, about the impact that gratuitous violent pornography can have in terms of domestic violence and the impact that it then has on children in those families. That needs to be debated and addressed. However, that is not what the Bill was primarily intended to do. Contrary to what the noble Lord, Lord Farmer, suggests, this is not some deal that has been done between the opposition parties and the Government over keeping age verification. A Conservative Back-Bench amendment was introduced in the other place at a late stage, which is why there has not been sufficient time to debate the subject in this place either, and certainly not enough public consultation on the issue. In accepting that amendment, the Government introduced this complication.

Many noble Lords around the Chamber today have said, although I do not know if they realised this, that the definition of prohibited material does not go far enough either. You can get the sort of things that they want banned from the internet on a DVD, albeit an R18, bought from a shop. The noble Lord, Lord Farmer, gave examples of the sort of sexual activity that he disapproves of. I do not know whether he knows that some of the activity that he talks about is legal to buy in a shop on a DVD. We are getting into a mess here because there is no agreement generally about what should and should not be allowed to be seen.

[Lord Farmer]

I made the point about the medical ramifications of certain practices. That is the point I was making about that.

[Lord Paddick]

Forgive me if I misunderstood the noble Lord. I thought he was using that as an argument for why that sort of activity should not be allowed to be seen by anyone, but I could be wrong.

[The Earl of Erroll]

This may assist the noble Lord and the rest of the House—

[The Earl of Erroll]

Very quickly, for clarification, the problem is that some material is regulated by ATVOD, some by the BBFC and some by Ofcom. That is where the noble Lord’s problems are coming from when he talks about “prohibited material”.

[Lord Paddick]

I am grateful for the noble Earl’s intervention, but for clarity I will stick to what I was saying. The noble Lord, Lord Alton of Liverpool, talked about the harm test that was introduced in 1994. I challenge anyone to suggest that some of the things that are not allowed in R18 videos cause harm to anyone. They might be unpleasant or, in some people’s eyes, morally reprehensible, but certainly there are things that are not allowed because of the definition of prohibited material but cause harm to no one. That is an illustration, without going into specific gory details about what is and what is not allowed. That is why we are in the mess that we are in.

Clearly the question of what is and is not acceptable pornography needs to be reviewed, and my understanding is that that is what the Minister has said will happen as part of an online safety review. Were the House to divide, we on these Benches would prefer Amendment 25YW from the Labour Front Bench, under which a review would take place but without specifying what the outcome of that review should be—that is, a reversion to the discredited definition of prohibited material.

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[Lord Ashton of Hyde]

The reason it does not is because it has discretion in individual cases. Sometimes it thinks it is in the public interest to prosecute and sometimes it does not. When the noble Lord said that it is discredited, I think he means that the CPS does not always prosecute every situation in line with its own guidance. If I have misinterpreted what he said, I am sure he will be able to tell us.

[Lord Paddick]

The noble and learned Lord asked a good question. My understanding is that the definition of prohibited material which the British Board of Film Classification uses is supposed to incorporate all the different definitions in different laws about what is obscene and not acceptable. The fact is that, in regard to a number of elements of those laws, the Crown Prosecution Service no longer prosecutes people for possession of that material. The definition of prohibited material therefore includes material for which someone would never be prosecuted. To that extent, the definition of prohibited material has fallen into disrepute.

Amendment 25B agreed.

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[Lord Paddick]

My Lords, my noble friend Lord Clement-Jones and I have Amendment 25N in this group. It is a probing amendment to test whether a “sufficiently independent” appeal mechanism against a decision of the age verification regulator is good enough. Government Amendment 25M, regarding appeals against a decision of the age verification regulator, describes the arrangements as “sufficiently” independent of the age verification regulator. Our amendment would remove the word “sufficiently” so that the amendment read: “any person hearing an appeal under those arrangements will be independent of the age-verification regulator”.

The British Board of Film Classification currently operates its own appeal mechanism against its decisions either to classify a film or DVD with a particular age classification or to refuse to grant a classification at all. That appeal mechanism is operated by the BBFC but by a panel that is independent of those who made the initial classification. To that extent, it is not wholly independent of the BBFC but it is arguably sufficiently independent to command the confidence of those seeking classification for their films and DVDs—that is, the industry can have confidence in the process.

Although this works well in practice with the proposed age regulation regulator, what if that regulator changes? This “sufficiently” independent arrangement appears to be designed around the proposed age verification regulator, the British Board of Film Classification, in a counterintuitive way—that is, not having an appeal mechanism that is totally or completely independent seems counterintuitive—because of the reputation that the BBFC has, which might not be the case were the age verification regulator to change. The wording “sufficiently independent” appears to be BBFC-specific in a way that might not be acceptable were any other regulator to be chosen. Perhaps the Minister can reassure the House on that point.

[The Earl of Erroll]

My Lords, I want to comment on Amendment 25D and to thank the Government for proposing new subsection (2B). One thing that worried those of us who had been thinking about how to make age verification work was the definition of “commercial basis”, which was a potential loophole for some websites to get round the provision. This proposed new subsection seems to close that loophole in that, even if material is free, it can still be provided on a commercial basis. Therefore, I congratulate the Government and support this amendment.

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[Baroness Jones of Whitchurch]

My Lords, in moving Amendment 25J I shall speak also to Amendments 25K and 25P. They tackle three key aspects of the regulation regime as set out in Part 3. First, as we have said, we believe that a great deal more work needs to be done on the detail of the Bill, specifically on the functions of the regulators. It is important to get this right.

For example, potentially huge new powers will be available in Part 3, underpinned by large fines and considerable and as yet untested obligations laid on internet service providers, banks and advertisers. The core expectation is that these large institutions are going to help us to police pornography sites, but for this to work there has to be confidence in the competence of the regulators and that their judgments will be proportionate and legally watertight.

From our discussions so far with these groups, I do not think that we have quite reached that point. Like most people, they have sympathy with the aim of protecting children, but they remain somewhat confused about how this is going to work in practice and what their role will be. This is why we suggest in proposed new subsection (14) set out in Amendment 25P that there should be further widespread consultation about the designated functions and powers of the regulators before they are laid down in statute.

Secondly, there is the issue of who the regulator or regulators might be. As noble Lords will recall, the lack of detail about the roles that they are to perform was discussed at length by both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, which fed their comments through during the Committee stage. I will not rehearse all the arguments again because they have been spelled out, but as an example, the DPRCC concluded:

“We think it inappropriate to delegate to the Secretary of State, with only a modest level of Parliamentary scrutiny, the decision on whom to designate as the regulator”.


The truth is that the Government have not been clear on this issue, and indeed they seem to have changed their position as the Bill has progressed without a legitimate explanation for doing so. The original letter of intent, which was sent by DCMS to the BBFC last year, made it clear that it would carry out the front end of the regulatory framework with a different, unnamed regulator of equal status carrying out the enforcement functions set out in Clauses 20 and 21. This position was maintained by the Government throughout the Commons debates on the Bill. Thereafter, in the Lords Committee stage debate, the Minister said:

“We propose that the BBFC should carry out the initial monitoring, assessing and notification work, and we are carefully considering alongside this the option for an enforcement regulator”.—[Official Report, 2/2/17; col. 1297.]


Our amendment is consistent with that position.

However, the Government’s view has changed again. In a more recent letter to the DPRRC, they say that it is intended that the BBFC should carry out all the functions apart from issuing financial penalties. Finally, at a recent meeting the Minister, Matt Hancock, began to speculate that the BBFC could in fact carry out all the functions in the Bill and that a second regulator was not really necessary. This is confirmed in the draft guidance that was produced last week. It is clear that a degree of mission creep is taking place here without an adequate explanation. That underlines our concerns that the Government have not really thought this through. It is not clear why there has been a change of heart. It might be purely pragmatic because, as we understand it, Ofcom has shown a reluctance to take on the enforcement role, but that is not a good enough reason to load all of the powers on to one body with little experience of the scale of enforcement that is spelled out in the Bill.

We continue to be clear that there are two separate regulatory functions, both with considerable responsibilities and heavy resource commitments. They are, first, identifying persons who contravene the requirement to provide age verification filters or who display extreme pornography—it may well be that the BBFC is qualified to do that—and, secondly, taking the widespread range of enforcement actions, including imposing fines, cutting off payments and advertising revenue, and blocking sites as specified in Clauses 20 to 23. This is how the Government originally intended the system to work, and it is a mark of good governance that the two roles should be kept separate.

Our amendment would remove the option of having just one regulator and specifies that there should be two or more. The relationship between the two bodies is set out so that appropriate checks and balances are in place.

The amendment also specifies that the appeals mechanism for decisions by the regulator should be fully independent and not appointed, overseen and funded by the regulator. Again, this is an issue that we have debated previously. We do not believe that the measures set out in the draft guidance address our concerns about appeals, and I hope that even now the Minister will concede that the Government need to revisit the level of independence of the appeals mechanism and to reassure us on that matter.

Finally, our amendment specifies the need for the regulators to have the status of a body corporate, independent of the Government and with all appointments made openly and transparently. Compelling arguments on this matter were put forward in Committee by my noble friend Lord Stevenson, and we continue to believe that they should be addressed before any regulator is appointed. Unlike most regulators, the BBFC is a private company with private arrangements for board appointments. It lacks the transparency and accountability of most organisations operating in this public sphere. It is to be appointed to a role where it will take on considerable extra functions that will be funded by the Government and with complex moral responsibilities at their heart, as we have heard in the earlier debates. We need a reassurance that its governance is of the highest standard, in keeping with the Nolan principles and open to scrutiny.

We believe that our amendments cover the essential factors which underpin a solid and credible regulatory structure. The Government should take time to make the appointments of regulators and they should think again about the drift towards one regulator, which was never originally envisaged. It is important to ensure that all the parties that will play a role in this new regime have confidence in the competence and authority of the regulators, and we believe that this can be achieved only if we consult further and widely about the functions as set out in our amendments. On that basis, I beg to move.

[Lord Paddick]

My Lords, I shared some of the concerns that the noble Baroness has just articulated about the role of the BBFC as both the group that will reach these decisions and the one to enforce them. However, having met with representatives of the BBFC, I have to say that I do not agree with the noble Baroness about heavy resource commitments. The BBFC is content that it should be able to carry out these roles with a minimal increase in resources. Also, bearing in mind the confidence that the industry currently has in the BBFC around classification and the awarding of certificates for films and DVDs, we are confident that were the BBFC to become the regulator, it could carry out both roles.

At the end of the day, the BBFC is not at all confident about how effective the financial penalty elements of the Bill will be, bearing in mind that the overwhelming majority of pornographic websites are hosted in other countries. In its view, the enforcement of financial penalties will be almost impossible, but it is confident that it could quickly and easily ask internet service providers to block websites that fail to provide adequate age verification. In these circumstances, we do not believe that we can support the amendments.

[The Earl of Erroll]

My Lords, this is an important point. Without enforcement, nothing will work. If you do not enforce age verification, no one will bother with it. For exactly the same reasons as the noble Lord, Lord Paddick, gave, I think that the notice and take-down—the blocking—is the only thing that will work. Fines will not work; it is probably a waste of time even trying them. The only thing that might work is to ask the credit card companies not to take payments for those sites, because they like to observe the law. I am concerned that the BBFC will not have resources to do this properly, but even if it goes elsewhere the BBFC should still be able to notify ISPs to block sites. That bit must certainly be enforced.

--- Later in debate ---

Moved by

[Lord Paddick]

25YN: After Clause 24, insert the following new Clause—
“Anonymity
(1) Age-verification providers must be approved by the age-verification regulator.(2) In this section an “age-verification provider” means a person who appears to the age-verification regulator to provide, in the course of a business, a service used by a person to ensure that pornographic material is not normally accessible by persons under the age of 18.(3) The age-verification regulator must publish a code of practice to be approved by the Secretary of State and laid before Parliament.(4) The Code must include provisions to ensure that age-verification providers—(a) perform a Data Protection Impact Assessment and make this publicly available,(b) take full and appropriate measures to ensure the accuracy, security and confidentiality of the data of their users,(c) minimise the processing of personal information to that which is necessary for the purposes of age verification,(d) do not disclose the identity of individuals verifying their age to persons making pornography available on the internet, (e) take full and appropriate measures to ensure that their services do not enable persons making pornography available on the internet to identify users of their sites or services across differing sites or services,(f) do not create security risks for third parties or adversely impact security systems or cyber security,(g) comply with a set standard of accuracy in verifying the age of users.(5) The code must include provisions to ensure that publishers of pornographic material take full and appropriate measures to allow their users to choose the age-verification provider of their preference.(6) Age-verification providers and publishers of pornographic material must comply with the code of practice.(7) To the extent that a term of a contract purports to prevent or restrict the doing of any act required to comply with the code, that term is unenforceable.”

[Lord Paddick]

My Lords, Amendment 25YN is in my name and that of my noble friend Lord Clement-Jones. This is a retabling of the amendment that we tabled in Committee to ensure that the details of those applying to have their age verified in order to access adult material on the internet remain anonymous.

I will not repeat at length the arguments I made in Committee. The Government are going to force individuals to go through an age verification process which they did not have to engage in before. To do that, they will have to prove their age by providing sensitive personal information to an organisation. Many of those organisations will create databases containing that sensitive personal information, which could become the target for hackers and criminals. As I said in Committee, there have been some high-profile cases of such unauthorised access to sensitive information in relation to porn sites and other similar sites in the past, with devastating consequences for those exposed. This amendment seeks to guarantee that age verification solutions ensure that the identities of those seeking to do the right thing and to have their age verified, rather than getting around the regulations by using for example a VPN, are protected. It would require the age verification regulator to approve age verification solutions and ensure that, as part of that, anonymity is protected.

Rather than accepting the amendment, the Government appear to be moving in the opposite direction. On page 6 of their draft guidance to the age verification regulator, the Government state in paragraph 5:

“There are various ways to age verify online and the industry is developing at pace. Providers are innovating and providing choice to consumers. The Regulator will not be required to approve individual age verification solutions”.


Whatever your Lordships may think of anonymity, the first and most obvious question is: how will the age verification regulator know whether the solution will effectively verify age if it does not have to approve that solution? At paragraph 6, the draft guidance goes on to say:

“The privacy of adult users of pornographic sites should be maintained and the potential for fraud or misuse should be safeguarded”.


The draft guidance talks about not duplicating the role of the Information Commissioner’s Office and says that the focus of the age verification regulator should be on age verification.

In my discussions with the British Board of Film Classification, it has said that it has no particular interest or expertise in the area of data protection in relation to keeping confidential the details of those seeking age verification. We will end up with an age verification regulator that forces users of adult material on the internet to use an age verification solution but has no responsibility for approving such solutions.

In any event, the draft guidance is something to which the regulator has only to have regard to. We believe that if UK users of online adult material are to be forced to verify their age—it is only UK users, as those in other countries will not have to do this—the Government have a particular responsibility to ensure that their sensitive personal data, which they would not otherwise have to put at risk, does not get into the wrong hands. That is what this amendment seeks to achieve and I beg to move.

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[Lord Ashton of Hyde]

I had not thought of that. I am absolutely sure that that was not the intention. However, in the meantime, I would like the noble Lord to withdraw his amendment.

[Lord Paddick]

My Lords, I thank in particular the noble Earl, Lord Erroll, for his support on this amendment and acknowledge the work that he is doing in this field. The noble Baroness, Lady Jones of Whitchurch, said she echoed many of our concerns—and in Committee, Labour Peers added their names to the amendment. It proposes a code of practice, the content of which would be specified in the Bill, but it would provide flexibility, in that it sets out only the minimum requirements of such a code.

The Minister said that the Information Commissioner’s Office is responsible for data protection, but the Information Commissioner’s Office is designed to ensure that people who voluntarily put their personal information into the internet are protected—and this is not a voluntary process. This is making it compulsory for anybody who wants to access adult material to give their personal data, which they would not otherwise have to do. We therefore think that the protections should be greater than those provided by the Information Commissioner’s Office.

As the Minister himself said, privacy is more important when it comes to accessing pornography than it is when accessing, for example, gambling sites. We are not reassured. The draft guidance that the Government have issued is only guidance that a regulator should have regard to; it does not have teeth at all. We therefore find both the draft guidance and the explanation given by the Minister inadequate for protecting the identities of those who seek age verification. I therefore wish to test the opinion of the House.