Online Pornography (Commercial Basis) Regulations 2018

Lord Stevenson of Balmacara Excerpts

Tuesday 11th December 2018 Lords Chamber

I very much look forward to hearing the Minister’s response. Of course, this guidance and these regulations are not the be-all and end-all and not the total solution, but I very much hope that they will form part of the solution.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very good debate, and I thank the Minister for his introduction, which allows us to range quite widely over the issues in play. I would observe—and I would not have it any other way—that over the last couple of years, the noble Lord, Lord Ashton, and I, and, indeed, one or two noble Lords who have spoken today, have spent a great deal of time together discussing and debating legislation and regulations which might apply to all pornography, and specifically in relation to protecting children. Some people bond over a coffee, football, the arts or shared hobbies; we do it with porn. In that sense I am with the right reverend Prelate who felt that he had to live it down in some way. I share his pain.

We have covered a lot of ground in this area and, although on the surface it is quite a narrow issue, getting the balance right between personal liberty and necessary regulation is never easy, and it is particularly hard to do given the technological changes that we are witnessing—in particular, the way in which information is now flowing through the internet.

I have been reading back some of the debates we had on the Digital Economy Act, as have others, and at some of the original regulations that we have already looked at which appointed the BBFC as the AV regulator. I want to make it clear that we do not want to hold up these statutory instruments—as noble Lords have already mentioned, they are already quite delayed. I have come to a provisional conclusion that what we have before us will not achieve what the Government intend, and may actually have unintended consequences and run the risk of stalling other, better alternatives, which I think we may have to consider in due course. Others have said this before, but it is worth repeating: these regulations are not future-proof; they are not comprehensive; they do not catch social media; they do not deal with overseas providers; they will not deal with non-photographic images and other more elaborate ways in which pornography is now being purveyed; and they do not bind together the companies involved to try to find a solution.

I will go through the regulations and make comments which are very similar to those that are already there and I will speak a bit to my own regret Motion. I will come back at the end of my remarks to where I think we need to go if we are going to take this issue further.

The general point on which I wish to start, before going on to the points raised by the scrutiny committees, is the argument I made before that a lot of the difficulty we have today with these regulations stems from the fact that we are trying to give statutory powers to a body that is essentially a private company. This is compounded—this comes up in the committee reports —by the fact that Parliament is not used to seeing regulations over which it has no direct authority, because they will be implemented through an arrangement between the department and a private body: the BBFC. In a sense, we are reading largely independent guidelines, fulfilling a mandate agreed within legislation but not subject to the specific scrutiny of this House, or indeed of the other place.

The BBFC is not a statutory body. It has no royal charter, so it cannot be assumed that it will act in the public good. It has a reasonable record, and it has statutory responsibility for videos and DVDs—but its work, for example in classifying films shown in the cinema, is done without any statutory authority. Will this issue be picked up in either the White Paper or the review which the Minister mentioned in his introduction?

My second point relates to the first in the sense that we have still not bottomed out the question of appeals that might arise as a result of the decisions being taken by the BBFC. We tried in the Digital Economy Bill to exert considerable pressure on the Government to get a separate regulator appointed as an appeals body. Indeed, we suggested that Ofcom would have been appropriate. Now we have a situation where the BBFC is the organisation of preliminary determinations and the body of first instance, but it is also the body for appeals. In principle, I do not think it is right that any body, statutory or otherwise, should be both judge and jury in its own cases. I look forward to hearing the Minister’s response. Can this be reviewed as part of the process?

Thirdly, we are skating round the question of what exactly is obscene material. Why do we have two existing definitions—one that is repeated in full in the documents before us but also one that derives from the definition of extreme pornography which is in another Bill? We had a good discussion about this during the DEA. The noble Baroness, Lady Howe, mentioned some of the ideas that were considered and turned down at that time, but it was also raised in the Data Protection Bill—so it will not go away. I think that in the review that is coming, it is really important that we nail what exactly we are trying to say. Either it has to be done in terms of perception or in terms of physical activities. I do not think that it can be both.

Turning to the instruments themselves, on the electronic communications one, which was referenced by Sub-Committee B of the Secondary Legislation Scrutiny Committee and the Joint Committee, the issue seemed to be, as has already been said, the rather odd definition of a “commercial basis”. We are looking for assurances from the Minister in relation to how that will apply, particularly in relation to children who come across internet sources which do not fall within the criteria specified. The second point, which has also been picked up, is the question of one-third of the overall content, which is a very odd way of trying to approach what I think is a sensible idea—that there should be some de minimis limit on what is considered a commercial provider of pornography, but measuring it in the way that has been suggested. Even with the comments made by the department to the committee, the Government have not taken that trick. I look forward to the Minister’s comments in the hope that he will deal with some of the examples given by the Joint Committee, which seem to raise issues.

On the AV guidance contained within the statutory instrument on that matter, again there are suggestions from both committees. The first point is the rather nuanced one made by the Secondary Legislation Scrutiny Committee that, as the BBFC has not provided an exhaustive list of approved age-verification solutions, the Minister himself should explain more fully the types of arrangement which were deemed adequate. He may find that that is better done by correspondence.

The question raised by several speakers of why the Government have not brought forward the power under Section 19 to impose financial penalties is the focus of my regret Motion, and I shall deal with that now. Both Sub-Committee B and the Joint Committee found this a very strange decision, and others have mentioned it as well. I hope that the Minister will be able to respond in full. The argument is very straightforward. Since we have doubts about the whole process and the concerns that exist are about the lack of effective solutions to protect children, one would have thought that the only way in which we can make progress on this is to ensure that the regulator has the effective firepower to get compliance if required to do so. It is interesting that in the documentation, and in the other regulation before us, search engines are fingered. Providers of IT services and providers of advertising can be hit. It is clear from the parallel situation in the gambling world that the support of the payment providers has been absolutely crucial in stamping out illegal practices there. Why have the Government not taken these powers?

On the same issue, but approaching it from the other end, I had problems with the guidance about a non-compulsory, additional, voluntary, non-statutory assessment and certification of age-verification solutions package, which is shown in annexe 5 of the documents before us. I gather that it will be an external agency, probably one of the large auditing firms. I found this very difficult to understand, and would be grateful if the Minister could explain what exactly is going on here. How is it that the ICO, an independent statutory body, is down as having developed this solution in consultation with the BBFC? If that is the case, it seems that its independence has been compromised and I do not see how that can work. In any event, adding another non-mandatory voluntary system seems to be just another way of complicating an already difficult area, as well as raising considerable issues of privacy along the lines raised by the noble Lord, Lord Paddick. Is this a wise step to take at the very start of a new venture? The whole question in relation to making a success of this seems to be in doubt. Will the Minister comment?

Finally, during the debate we held on the first order in this clutch of statutory instruments, which confirmed the BBFC as the age-verification regulator, the Minister confirmed that it was not the BBFC’s job to determine whether what is being offered on its sites to adult users is lawful. Can the Minister confirm that, despite the slightly ambiguous wording in some places in the draft guidance, the role of the BBFC is, as stated in the regulations, limited to assessing that a person offering such services,

“has met with requirements of section 14(1) of the Act, to secure that pornographic material is not normally accessible by children and young people under 18”?

In conclusion, I ruminated earlier about whether this was the right approach, given the need to get a proper grip of the situation. Let us put in context the fact that, through the Data Protection Act, we have set up and now brought to fruition a data ethics and innovation commission, which will deal with issues of personal data, privacy and the way in which they interrelate. We have begun to see the new, age-appropriate design approach to the way in which internet service providers have to look after the rights of children who get on to their sites. We have discussed the precautionary principle in relation to internet services more generally.

Finally, I will pose a question to the Minister. We have in front of us top-down, traditional approaches to regulation: setting limits, engaging in the possibility of serious action if the limits are breached, and making sure that—as far as possible—we are able to contain a situation that we think is now unacceptable. However, the only way to get by on this is if the companies themselves are involved, so a duty of care approach might be much more fruitful as a way forward. I would be grateful for the Minister’s comments on that.

--- Later in debate ---

Many noble Lords talked about the definition of extreme pornographic material. This was debated extensively—I will not forget it in a hurry—during the passage of the Bill. It is not within the scope of this debate, focusing entirely on the definition of commercial availability. However, because the primary legislation requires the Secretary of State to consult on the definitions before publishing a report on the impact and effectiveness of the regulatory framework, I think that is where we can continue that discussion. I assure noble Lords that we will revisit this issue. I suspect that I do not need to give that assurance and that it will be brought up anyway, but I assure the noble Baroness, Lady Benjamin, that we will be flexible and proactive.

[Lord Stevenson of Balmacara]

I am sure that the noble Baroness, Lady Howe, was about to leap to her feet but, to save her doing so, I mention to the Minister that he did not answer the question which she posed, and which was picked up by the noble Baroness, Lady Benjamin, about whether he would find time for the excellent two-paragraph Bill which she has in process and which would solve many of these problems.

[Lord Ashton of Hyde]

I had not forgotten that. It would obviously be difficult for me to commit to finding the necessary time but I will take that back to the department. I am not sure that it is currently within the plans of the Chief Whip to bring forward that legislation but I will ask. I understand the point that is being made but, as I said, the issue may well be covered within the review. I am afraid I cannot go any further than that tonight.

As for ancillary service providers, the BBFC and the DDCMS have been engaging with several companies. They have already agreed to act, as doing so is in line with their current terms of service. Therefore, we are optimistic that the voluntary approach will work, and of course that will be reviewed.

The right reverend Prelate, the noble Earl, Lord Erroll, and others talked about the rationale for choosing one-third of content as the appropriate threshold. During the passage of the Bill, it was established that the focus should be on commercial pornography sites and not on social media. There were good reasons for that but I do not want to revisit them—that is what was decided. The one-third threshold was regarded as proportionate in introducing this new policy where sites make pornography available free of charge. However, websites that market themselves as pornographic will also be required to have age verification, even if less than a third of the content is pornographic.

A third is an arbitrary amount. It was discussed and consulted on, and we think that it is a good place to start on a proportionate basis. We will keep this matter under review and, as I said, it will be one of the obvious things to be taken into account during the 12 to 18-month review. The noble Lord, Lord Morrow, asked how it will be measured. It will be measured by assessing the number of pieces of content rather than the length of individual videos. It will include all pornographic images, videos and individual bits of content, but the point to remember is that the threshold is there so that a decision can be made on whether it is reasonable for the regulator to assume that pornographic content makes up more than one-third of the entire content. This will be done by sampling the various sites.

The noble Earl, Lord Erroll, asked about ISP blocking and suggested that everyone would try to game the system to get out of meeting the requirements. That is not what we believe. The BBFC has already engaged with ISPs and we are confident that this will be an effective sanction. The wording in the guidance indicates that the regulator should take a “proportionate approach”. However, we are grateful for the noble Earl’s help. I am sure that he will also help during the review and later in the process when it comes to online harms. I see that he wants to help now.