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

Lord Sharpe of Epsom Excerpts

2nd reading
Friday 28th January 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I apologise for my slightly tardy arrival this morning.

I join others in thanking the noble Lord, Lord Morrow, for introducing this Bill, and thank all noble Lords who have taken part in this very powerful debate. I acknowledge the valuable work done by the Joint Committee scrutinising the draft online safety Bill, and in particular the noble Baroness, Lady Kidron. It is clear how much time and careful thought the Joint Committee has put into its scrutiny, and I hope I can give some positive comments in answer to the noble Baroness.

The Government share the concerns raised in both Houses, by parents and by those advocating on behalf of children’s safety online that a large amount of pornography is available on the internet with little or no protection to ensure that those accessing it are old enough to do so. While preventing children accessing online pornography is a key priority for the Government, I am afraid that the Government do not support this Private Member’s Bill, on the following grounds.

First, this is an unusual use of a Private Member’s Bill from a procedural perspective. The Bill introduces a new, stand-alone duty to commence regulations through pre-existing primary legislation. On its ordinary reading, this new duty would supersede the existing discretionary power that the Secretary of State has in that primary legislation to introduce commencement regulations. The Bill does not, however, make any amendment to that discretionary power, nor does it make any attempt to update the previous legislation to take account of the new statutory obligation that would have a significant effect on it.

Secondly, the Government have already taken the decision, announced in October 2019, that they would not be commencing Part 3 of the Digital Economy Act 2017. We will instead repeal these provisions and deliver the objective of protecting children from online pornography through the forthcoming online safety Bill.

The proposed measures in the online safety Bill will mean that platforms will have clear legal responsibilities for keeping their users safe online. Services which are likely to be accessed by children will be required to protect them from harmful content on their sites, including pornography. Priority categories of harmful material to children will be set out in secondary legislation, so that all companies and users are clear on what companies need to protect children from.

The online safety Bill will deliver more comprehensive protections for children online than the Digital Economy Act. The draft Bill goes further than the Digital Economy Act, protecting children from a broader range of harmful content on a wider range of services. The Digital Economy Act was criticised for not covering social media companies, where a considerable quantity of pornographic material is accessible, and which research suggests children use to access pornography. The online safety framework will cover many of the most visited pornography sites, social media, video-sharing platforms, forums and search engines, thereby capturing sites through which a large proportion of children access pornography. We expect Ofcom to take a robust approach to sites that pose the highest risk of harm to children, including sites hosting online pornography.

A number of noble Lords, including the noble Lord, Lord Morrow, have addressed the issue of violence against women and girls. Of course violence against women is abhorrent. The Government Equalities Office commissioned research into the relationship between pornography use and harmful sexual behaviours, to better understand whether there are connections, as referenced by the noble Lord, Lord Alton. The noble Earl, Lord Erroll, also made powerful points about this. The online safety Bill will impose legal duties on companies to address damaging content online. This will include removing illegal and extreme pornography, as well as applying the Bill’s duties to legal pornography on major platforms. It will also mean that platforms in scope will need to protect children from accessing the most harmful material, such as pornography.

A number of noble Lords also referenced extreme pornography. The duty set out in the Bill for illegal content will apply to instances of extreme pornography. For all content that amounts to a relevant offence, platforms will be required to ensure that they have the systems and processes in place to quickly take down such content once it has been reported. Under the Bill, a limited number of criminal offences that pose the greatest risk of harm online will be listed in legislation as priority offences. For priority offences, platforms will be required to implement systems and processes to minimise the uploading and sharing of such content. This new approach will be more robust than the Digital Economy Act, as it will capture extreme pornography, as well as other illegal pornography, including non-photographic child sexual abuse content that is not included in the definition of extreme pornography referred to in the Digital Economy Act.

The noble Baroness, Lady Brinton, asked what these new laws will mean for revenge pornography. This is already a crime under Section 33 of the Criminal Justice and Courts Act 2015. Platforms will need to take action to prevent explicit illegal content circulating or face enforcement action. In addition, the Government recently confirmed that the revenge porn offence would be widened to include threats to disclose intimate images with the intention of causing distress. Section 69 of the Domestic Abuse Act 2021 recently extended the offence to include threats to disclose such material. These provisions came into effect on 29 June 2021 and are not retrospective. The extension of the offence applies to England and Wales.

Our ambition is to ensure that we are fully equipped to respond to the changing nature of violence against women and girls and, most importantly, to continue to put victims and survivors at the heart of this approach. As the noble Lord, Lord Browne, has highlighted, the Government published a new Tackling Violence Against Women and Girls Strategy last July.

The Government recognise the concerns that have been raised, including from the Joint Committee scrutinising the draft online safety Bill, about protecting children from online pornography on services which do not currently fall within the scope of the online safety Bill, as referenced by the noble Baroness, Lady Merron. The Secretary of State said during her evidence session to the Joint Committee scrutinising the draft Bill that the Government are exploring ways to provide through the Bill wider protections for children to prevent them accessing online pornography, including on sites that are not currently within the draft Bill’s scope.

It is worth quoting at length what the Secretary of State said on 4 November last year:

“I do not believe that the Bill goes far enough in preventing children from accessing commercial pornography. That is tied into age verification and there are elements of that that I have asked officials, subject to parliamentary counsel and write-around, to look at further, to see whether we can do more. I realise that there is a gap. I am not going to call it a loophole. There is a gap, and I think we need to close that gap somehow if we can.”


The noble Baroness, Lady Kidron, talked about algorithms in reference to this subject, and how we will be dealing with them. Companies will fulfil their duties under the proposed new law by assessing the risks of harm to users from their services and putting in place systems and processes to mitigate them. As the noble Baroness said, algorithms play a very important part in how many companies operate their services, and they need to consider how they could cause harm and take steps to mitigate it. The regulator will set out steps that companies can take to fulfil their duties in codes of practice.

The use of age-verification technology is key to this. We will expect companies to use age-verification technologies to prevent children accessing online pornography or to demonstrate to Ofcom that the approach they are taking delivers the same level of protection for children.

It is important that the Bill be future-proofed—I hope this goes some way to answering the questions raised by the noble Earl, Lord Erroll, and the noble Baroness, Lady Brinton—so it will not mandate that companies use specific technologies to comply with their new duties. This is similar to the requirement in the Digital Economy Act, which did not mandate the use of a particular technology. Where age-verification technologies are used, it is important that they are robust, effective and privacy-preserving. This is needed to ensure that children are appropriately protected and that the public have trust in these solutions.

The Government take data security and privacy extremely seriously, which is why both Ofcom and in-scope companies will have duties under the Bill relating to user privacy which will apply to the use of age-assurance technologies. Standards also have an important role to play here by creating consistency and providing transparency for regulators. The Bill has been designed such that Ofcom will be able to set out expectations for the use of age-verification technologies in its codes of practice and accompanying guidance. This includes referencing relevant standards or principles. Companies will need to adopt these standards or demonstrate clearly to Ofcom that they have achieved an equivalent outcome.

So, we have given Ofcom, as the regulator, a broader range of enforcement powers than Part 3 of the Digital Economy Act to take action against companies that fail to act. Ofcom can issue fines and require companies to take specific steps to come into compliance or remedy their breach, and it can set deadlines for action to be taken.

Ofcom will have a suite of enforcement powers available to use against companies, which include imposing substantial fines up to the greater of either £18 million or 10% of qualifying annual revenue. Under the Digital Economy Act, it was £250,000 or 5%. Ofcom can also require companies to make improvements and, in the most serious cases, pursue business disruption measures, including blocking. There will also be criminal sanctions for senior managers in tech companies if regulated providers do not take their responsibilities seriously. The new regime will apply to companies that provide services to UK users, wherever they are located. We consider this approach necessary given the global nature of the online world, and the Government expect Ofcom to prioritise enforcement action where children’s safety has been compromised.

Ofcom has been mentioned a lot today, particularly with regard to time and preparation, so I am going to digress briefly to talk a little about what we have been doing with Ofcom in preparation. We have achieved a positive outcome through the challenging spending review, securing continued funding across online safety and allowing for the delivery of the Government’s commitment to make the UK the safest place to be online.

As we know, the online safety Bill represents the largest and highest-profile expansion in Ofcom’s remit since its inception. Ofcom is currently recruiting a significant number of staff to ensure it has the necessary expertise to implement the framework as intended and act as the online harms regulator. To effectively support the DCMS in taking the Bill through Parliament, Ofcom will work to create a strong evidence base to help inform its regulatory strategy and framework. It will also be overseeing the implementation of key operations and processes in its organisation as it steadily expands its operations for the regime going live.

Commencing Part 3 of the Digital Economy Act would create a confusing and fragmented regulatory landscape that tackles individual concerns in a piecemeal fashion. It would also subject businesses to two different enforcement regimes, with potentially different regulators.

In answer to the question from the noble Baroness, Lady Benjamin, our analysis indicates that it would take a minimum of just under two years to implement the provisions of Part 3 of the Digital Economy Act, so a commencement date of 20 June 2022, as set out in this Bill, would be impracticable even if desirable. The Government would need to designate a new regulator, that regulator would need to produce and consult on statutory guidance and the Government would then need to lay regulations before Parliament ahead of any new regime coming into force.

I am going to digress once more to talk about the interim measures we have taken. I hope this reassures noble Lords that there is not some sort of void in children’s safety at the moment. We have a comprehensive programme of work planned to ensure we maintain momentum on child online safety, until the legislation is ready. Ahead of the online safety Bill, the video-sharing platform and video-on-demand regimes are already in force, with Ofcom as the regulator. They include requirements for some UK services to protect children from harmful content online, such as pornography. In addition, the Government have published an interim code of practice for providers to tackle online child sexual exploitation and abuse. This code sets out steps that companies can take voluntarily to tackle this type of abuse.

In July 2021, the Government published our Online Media Literacy Strategy. The strategy supports the empowerment of users, including young people, with the skills and knowledge they need to make safe and informed decisions online. In addition, the new relationships, sex and health education curriculum is clear that, by the end of secondary school, pupils should have been taught about the impact that viewing harmful content such as pornography can have. This covers both the way that people see themselves in relation to others and how pornography can negatively affect how they behave towards sexual partners.

As part of the interim measures, in response to the Ofsted review following the Everyone’s Invited website ad campaign, we funded the NSPCC to launch a dedicated helpline and we moved to strengthen the delivery of the new relationships, sex and health education curriculum with additional support and briefings for teachers. That subject came up in a Question earlier this week.

On timing, we are committed to introducing the online safety Bill as soon as possible in this parliamentary Session. It is therefore reasonable to assume that the online safety Bill will receive Royal Assent within the time it takes to implement the Digital Economy Act, making any benefits of an interim regime minimal at best. The Joint Committee that scrutinised the draft online safety Bill published its report in December, and we are carefully considering its recommendations.

It is worth reiterating that our intention is to have the regime operational as soon as possible after Royal Assent. In the meantime, as I have just outlined, we are working closely with Ofcom to ensure that the implementation of the framework takes as short a time as possible following passage of the legislation.

I am aware that I have not answered the question from the noble Baroness, Lady Merron, about delays to the Digital Economy Act. I will have to write to her on that; I am afraid I do not know the answer. I have tried to answer all other noble Lords’ questions. I will study Hansard carefully and, if I have failed to answer or missed any, I will write.

I reiterate that, today, we heard some powerful arguments for and accounts of the urgent need to increase protections for children online. We will be able to deliver the strongest possible protections through the online safety Bill, rather than Part 3 of the Digital Economy Act. In answer to the noble Baroness, Lady Brinton, we are not hiding behind this Bill.

Finally, and to answer the noble Baroness, Lady Kidron, on a personal note and as a parent—the father of a daughter and a son—I will reflect the tone and tenor of this debate to the Secretary of State. The noble Baroness made it clear that she is also very committed to this legislation and to enacting it at speed. Also speaking personally, I rather agree with the noble Lord, Lord Alton: a return to an analogue world is quite appealing.