Digital Economy Bill

Baroness Benjamin Excerpts

2nd reading (Hansard): House of Lords
Tuesday 13th December 2016 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I rise to speak in this wide-ranging debate and would like to concentrate on issues concerning children. I declare an interest as per the register.

First, I address a matter regarding BBC children’s television and its prominence on the EPG—that is, the electronic programme guide. I am concerned that it is becoming more and more difficult to find BBC children’s programmes on new connected televisions. Believe it or not, on one new platform it takes at least 22 clicks on the remote to get from the home screen to CBBC. Parents know that BBC content for children is of the highest quality; it is entertaining as well as educational yet, worryingly, it is not easy to find on many platforms and televisions, especially for new parents. The legislation with regards to PSB UK-produced content prominence is already out of date. As my noble friends Lord Foster and Lord Storey and others have said, on one platform CBBC and CBeebies are buried beneath 14 commercial channels on the EPG, many of which predominately show American content. Will the Government commit to updating the legislation to ensure that BBC children’s content is prominent on all platforms?

I turn to children’s television provision. Recently there was the launch of Save Kids’ Content UK, and I believe that the Digital Economy Bill would be a timely and effective vehicle to introduce legislation that puts an obligation on commercial PSBs to meet quotas for children’s programming here in the UK. Historically, the Broadcasting Act 1990 required public service broadcasters to devote specific amounts of provision for children, from the BBC, ITV, Channel 4 and Channel 5. However, the Communications Act 2003 downgraded children’s content from tier 2 to tier 3 programming. This relieved commercial PSBs of their obligation to meet quantitative targets of children’s programming. This unforeseen consequence saw a dramatic decline in children’s programming, compounded in 2006 with the advertising ban on high fat, salt and sugar foods during children’s programmes. Since then, investment in children’s content over the past 10 years has collapsed by 95%. This dramatic decline has created a situation in which the BBC has the monopoly on producing children’s programming by default, because commercial PSBs are no longer obliged to commission children’s content. The recent decision of ITV to cut the role of head of children’s programming is a further sign that original children’s production will continue to fall and that foreign content and repeats will continue to rise.

We need to reverse this decline, because our children deserve to see themselves and their roles in society reflected in UK-produced programmes. Children have the right to access content that is rich in cultural terms, inspires their imagination and enriches their development. We need to create content that reflects them, their lives and their aspirations. Therefore, I believe changes to legislation, introduced through the Digital Economy Bill, in Part 6 relating to the powers for Ofcom, would give Ofcom the tools to actually improve commercial PSBs’ compliance. Will the Government consider this proposal to bring in this legislation?

I turn to Part 3 of the Bill, which covers age verification for pornographic content. As I said many times in this House, childhood lasts a lifetime. What children see and experience stays with them for ever. At the moment, some children are viewing graphic and horrific sexual images—children as young as four. So I am so pleased that the Government have tackled their manifesto commitment to,

“stop children’s exposure to harmful sexualised content online”,

with the proposal that pornographic websites that are accessible in the UK must have age-verification measures in place. Thank goodness for that. It is something that I have campaigned for over many years, and the noble Baroness, Lady Howe, should be congratulated, because she has brought her Private Member’s Bills to this House asking for this legislation for years. It brings the online and offline worlds on to a level playing field. I am so pleased to see Clause 80, which was introduced on Report in the other place. It means that age verification will apply to 18-rated video on-demand pornographic material live-streamed from this country to people in this country, in just the same way as the legislation has always required that of 18-rated video on-demand pornographic material streamed into this country from sites based abroad. This introduction could not come soon enough.

I sit on the Lords Select Committee on Communications, where we are conducting an inquiry on children and the internet. I am very aware of the benefits of the internet, but also of the potential difficulties of bringing in effective regulation. However, I have become more convinced than ever—as I have read about the impacts of pornography on our children and young people, with more and more of them suffering from anxieties, depression and trauma—that we would be doing them a grave disservice not to enact the measures in Part 3 of the Bill.

We expect offline protections to restrict access to certain goods that are inappropriate for children and young people, and we should expect them in the online world as well. I commend the Government for taking this action. However, I have worries about how the Bill will be enforced. Clause 20 allows the age-verification regulator, the British Board of Film Classification, to impose fines upon non-compliant websites, which is very welcome, but I am concerned about how the Government will be able to ensure that overseas sites will pay these fines. The Bill, as drafted, does not require these providers to take any action in relation to the website, although the Government’s assumption is that they will. Will there be legal certainty in place if there was an express requirement on these providers to block payments and withdraw services? I fully support the ability of the regulator to require ISPs to block access to websites that are not following the law in the UK. ISPs can block access to sites that are in breach of UK copyright law, so why not do it to protect children? Business rights are not more important than children’s rights. So Clause 23 is to be supported.

In seeking to protect children from stumbling upon pornography, it is particularly important that social media is covered by the Bill. That is one of the primary ways in which children are exposed to pornography. There has been some debate about the scope of Clause 15 and the ancillary service providers, but it seems clear to me that social media should be covered by this. I was particularly delighted that the noble Baroness, Lady Shields, confirmed to the Lords Communications Committee on 29 November that:

“The Bill covers ancillary services. There was a question about Twitter. Twitter is a user-generated uploading-content site. If there is pornography on Twitter, it will be considered covered under ancillary services”.

Can the Minister confirm that this will be the case and also the case for all other social media, including, Facebook, Tumblr and Instagram? I know that there are online issues beyond pornography that parents are concerned about, so I welcome the Government’s commitment to introduce an amendment to ensure that family-friendly filters offered by internet service providers will continue with legal certainty. One of the central pillars of our adult content filtering regime refers to public wi-fi. Will the Minister please confirm that the amendment which the Government intend to introduce will make space for the use of adult content filters in relation to public wi-fi?

Finally, the NSPCC, CEOP, CARE, the Children’s Media Foundation and many others all believe that the internet should be a safe place for children by default in the same way that other media, and indeed life, is. The Bill is an opportunity to ensure this happens and to truly protect our children. This is going to be an important debate on the future of child protection in the online world. We are world leaders in putting protection in place for children; the world is watching us and will follow suit. I look forward to hearing what the Minister has to say on the Bill.

Digital Economy Bill

Baroness Benjamin Excerpts

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

[Baroness Benjamin (LD)]

My Lords, first, I thank the Minister for his opening remarks at the beginning of this debate. I was pleased to hear that the Government are in listening mode as we work our way carefully through this Bill.

When we speak about the crucial subject of the enforcement of the age verification provision, it is vital to remember that we are talking about how we ensure that children and young people are kept safe. All the evidence is that early exposure to pornographic material can be extremely harmful to children. The Economist reported that given the view that sexual tastes are formed around puberty,

“ill-timed exposure to unpleasant or bizarre material could cause a lifelong problem”.

As I repeatedly say, childhood lasts a lifetime.

There is evidence that pornography can lead to unrealistic attitudes to sex, damaging impacts on young people’s views of sex and relationships, putting pressure on how they look or influencing them to act in a certain way. All of that reminds us of the context in which we are having these discussions on the finer points of enforcement. With this context in mind, we need to make sure that the age verification provisions in Part 3 are backed up with the most effective means of enforcement.

We have heard noble Lords set out why they think Amendment 66 would be better than Clause 23, but does it really stand scrutiny? There is a concern about the delay that would result from Amendment 66. Quite apart from the fact that requiring the age verification regulator to enforce the age verification requirement through court injunctions would be much slower and much more expensive than the procedure under Clause 23, there is the fact that Amendment 66 would further delay the provision of effective enforcement, and therefore child protection, through the requirement that IP blocking would take effect only if the Secretary of State at some future point decides to make regulations allowing this. In this regard I am particularly concerned that the drafting of proposed new subsection (1) in Amendment 66 implies that the Secretary of State can consider making regulations only when the BBFC considers that there is an actual person in contravention. The BBFC cannot be ahead of the game and will be on the back foot while it waits for the regulations to be made, if they are to be made at all. This does not make our children and young people safer. I am also concerned that Amendment 66 does not provide legal clarity for ISPs at this stage of the Bill on whether IP blocking will be required and, if so, how that will need to be delivered.

While Amendment 66 does not provide certainty, Clause 23 sets out very clearly its central requirement in subsection (2)(c) that an ISP must,

“prevent persons in the United Kingdom from being able to access the offending material using the service it provides”.

It sets out when that would be required in subsection (1), how it would be implemented in subsection (2) and the obligations on the ISPs in subsection (8). The BBFC knows what it can do; the ISPs know what will be expected of them; and the pornographic websites will be clear that their sites might be blocked if they do not comply with Part 3. In comparison with the much weaker Amendment 66, Clause 23 is so effective that exchanging them would fundamentally weaken the child safety provisions in the Bill. That would be a real tragedy.

Why are we making exceptions for porn merchants? We have had a system in place in the UK for dealing with child abuse images for over 20 years. It is the envy of the world. It has never required prior judicial authorisation. Let us be clear: the Internet Watch Foundation, which runs the system, could at any time be brought to court to explain an action or decision it has taken, because it is subject to judicial review. Not only has the IWF never lost a judicial review case, no one has ever taken one against it. We get rid of terrorist material without requiring any judges or courts to get involved and I have never heard any criticism of that system. But if we are talking about protecting children against porn—oh no. Everything slows down, everything becomes more expensive and we have to get a judge and lawyers involved, because it is suggested that, uniquely, we need prior judicial authorisation.

However, the age verification regulator will have an appeals system. Every decision the regulator takes can be made the subject of a judicial review. If the regulator gets taken to court and loses all the time, perhaps we would need to look at the provisions again, but I have absolutely no reason to believe that would be the case. Therefore I think that Amendment 66 should be rejected, because the material we are talking about here is extremely harmful to children and we want it out of sight as quickly and simply as possible. I am sure that no one in this House would want their children or grandchildren ever to be exposed to or damaged by this vile material. Our overworked courts and judges have enough on their plates. We simply do not need to drag them into this on a routine basis. Let us put our children’s well-being and protection first. I very much hope that the Government will stand by Clause 23 and reject Amendment 66.

[Baroness Howe of Idlicote]

My Lords, like the noble Baroness, Lady Benjamin, I rise to speak against Amendment 66, which in my judgment would seriously undermine the scope for Part 3 of the Bill to be enforced. I have campaigned for child safety online for many years and am far from reassured that the amendment will deliver on that objective. I have also raised repeatedly concern about the quantity and type of pornography accessed in the UK but based in other jurisdictions. I am very pleased that the Government have recognised that this is a significant issue. However, without being able to ensure that foreign websites take the action that is required under Part 3, in practical terms we will be no further forward.

This is no theoretical discussion. In its evidence to the Public Bill Committee in the other place, the British Board of Film Classification said that it planned to target regulation at about 50 sites and that it does not expect any of these to be in the UK. Clause 21 sets out fines but is far from clear about what the Government can do if a site in another jurisdiction refuses to pay a fine; your Lordships can come back to that when we debate the next group of amendments.

Clause 22 has a better international reach but it fails in a number of different scenarios relevant to the discussion on Clause 23: first, if a site offers free pornography; secondly, if it does not use conventional credit cards but relies on payment methods such as bitcoin; and thirdly, if the website does not use a UK-based ancillary service provider. These very brief statements highlight the need for another enforcement option for foreign websites, and I am pleased that many Members in the other place agreed. I commend the work of Mrs Claire Perry, the honourable Member for Devizes, who had the support of 34 MPs from seven parties for her amendment, which had a similar objective to Clause 23. I also congratulate the Government on responding constructively with the introduction of Clause 23.

For Part 3 to be effectively enforced, it is critical that foreign sites know that the UK regulator could block them. The Digital Policy Alliance, in its briefings on the Bill, said that that there would be a major loophole in the Bill without an IP-blocking option. To this end, the proposals in Amendment 66 are deeply problematic. My noble friend Lord Morrow has already mentioned concerns about delays arising from the need for the Secretary of State to produce regulations and the question of whether he or she will use the power. On top of this, court injunctions are expensive and cumbersome, and every website would know that they could be used only very occasionally, which could tempt foreign sites accessing the UK to risk not bothering with age verification.

I am also concerned that Amendment 66 would undermine the admirable work the Internet Watch Foundation does on removing child abuse images. I understand that if blocking of pornographic and prohibited material should require court injunctions, it will form a very difficult precedent for bodies such as the foundation, which help to keep our children safe. If it had to use a court injunction every time it requested that a page should be taken down, that would greatly limit and inhibit its capacity and as such would be a grave and very serious mistake.

By contrast, Clause 23(1) allows the BBFC to use IP blocking, after notifying the Secretary of State, from the day Part 3 comes into effect. The BBFC may need to use this power early into the Bill’s implementation if it cannot trace a foreign website or if the website is unresponsive and does not use credit card payments, which might be blocked under Clause 22. There will be no delay as to when this enforcement power can be used. Secondly, it will give the BBFC the power to ask ISPs to block sites when they need to. It is not saying that they must use this power but that they can. There will be no delay or the expense of going to court to get a blocking injunction. Thirdly, there will be no negative impacts on the Internet Watch Foundation and the admirable work it does on removing child abuse images.

In a context where the majority of online pornography accessed in the UK comes from websites based in other jurisdictions, the provision of a robust and flexible IP blocking mechanism is central to the ability of this legislation to enforce the age verification provisions that are at its heart to keep our children safe. To swap Clause 23 for Amendment 66 would not reflect well on us. In closing, I warmly congratulate the Government on Clause 23 and hope that they and the Minister will stand resolutely by it and against Amendment 66.

Digital Economy Bill

Baroness Benjamin Excerpts

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

I am convinced that without robust enforcement, all our good intentions in relation to the protection of children will come to nothing. Many noble Lords supported the principle of Part 3 on Second Reading—but principle is not enough. We need rigorous action, and at the moment it is unclear just how the Bill will be enforced to ensure that our good intentions are met. I hope that on this occasion the Minister will respond to the questions I have raised in detail. I beg to move.

[Baroness Benjamin (LD)]

My Lords, I wish to speak on my two amendments in this group. Amendment 63 relates to the guidance that the age verification regulator may issue under Clause 22(7). It would make publishing this guidance mandatory rather than discretionary. It has been noted by the Delegated Powers and Regulatory Reform Committee that the regulator has extensive powers to issue guidance under Part 3—that is, in Clauses 15(3), 21(9) and 22(7). The guidance required in Clauses 15(3) and 21(9) is mandatory, but in Clause 22(7) it is discretionary.

The effectiveness of Clause 22 is central to the Government’s enforcement strategy. It is great that they want to disrupt pornography websites that are not in compliance with the age-verification requirements of Clause 15(1) by either stopping the money via the payment providers or disrupting other business activities via what the Government deem ancillary service providers—ASPs—a term that is broadly defined in Clause 22(6).

The Bill states that the age verification regulator,

“may publish guidance for the purposes of subsections (1) and (6) about the circumstances in which it will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or prohibited material”.

It is essential that the guidance in clause 22(7) be published. It is not just something that would be nice to have, which is how the Bill currently stands.

In making the case for mandatory guidance, I would like to make two additional points. First, Parliament should know what the Government intend should be considered an ASP, so that the debate we are having today can inform the guidance. In their original consultation document on age verification, the Government defined ASPs as,

“services which support and profit from the delivery of pornography on commercial sites. These include, but are not limited to, payment systems, advertising on pornography sites, web-hosting services, and other revenue-generating processes associated with these sites”.

Payment providers are defined in subsection (5) but whether the Government still intend that other types of organisation listed in the consultation document should fall within the scope of Clause 22 is not clear. The truth is that we do not know whether there will be any clear, comprehensive guidance, and that is simply not good enough from the Government. There is a strong argument that the definition of an ASP should be fully provided in the Bill. My hope is that, at the very least, we should have an absolute guarantee that the regulator will provide guidance defining who will be considered an ASP.

Secondly, I would like to raise questions about how social media and media sites will be treated for the purpose of Clause 22. We need clarity on this. If my amendment was accepted, that clarity could be provided through mandatory guidance. I was pleased to hear the Minister reconfirm that all social networking sites will be classed as ancillary service providers, and that this arrangement would apply to the likes of Facebook, Tumblr, Instagram and so on when showing commercial pornographic material.

However, I want to mention briefly user-generated material on social media, an issue that naturally arises in debating this Bill if we are told that it will not cover it, despite a vast amount of hardcore porn that can easily be viewed by anyone, including young children, being just a couple of clicks away. The majority of social media sites say that 13 year-olds are allowed to use their sites. In fact, 75% of all 10 to 12 year-olds in the UK are on one or more social media sites. So there is no justification for a site that says 13 is its minimum age providing easy access to harmful 18-plus material; even less so when the same site also knows that in fact, large numbers of under-13s are its customers.

As it stands, commercial porn sites will be required to introduce age verification to limit access to over-18s, but social media sites escape such a requirement if the material is user-generated. Therefore, we leave the door wide open and we may end up driving kids away from big porn sites straight into the virtual clutches of porn merchants who operate via social media. One suggestion is that perhaps the proposed new regulator could identify individual accounts or profiles persistently publishing pornography on a significant scale on any site or service. The regulator should then have the power to require the owner of the site or service to delete the account or profile, or put it behind an age verification gateway. Importantly, the whole site or service would never be blocked or restricted.

I welcome Amendment 69A in the name of the noble Lord, Lord Paddick, which would seem to be an additional sensible means of beginning to address some of these concerns regarding non-commercial pornography. Requiring the Secretary of State to lay regulations concerning non-commercial porn is helpful. I particularly support the proposal for a warning sign on a website that the user may be about to access pornographic material. A warning of this kind may not be a silver-bullet deterrent but is a welcome step in the right direction and a platform upon which we can build for the future.

If the Government are not going to address user-generated content through this Bill, then I wonder what their child protection policy is with respect to engaging user-generated content. If the Government have reached the conclusion that commercially generated content is something from which children should be protected, then it seems illogical not to be concerned about user-generated content. It is worth remembering that the Government’s manifesto commitment was to,

“stop children’s exposure to harmful sexualised content online”.

There is no mention of how the content was produced. The Government’s response may be that addressing user-generated content is more difficult, but we need to address this issue. I hope that the Minister will meet me and other concerned Peers to discuss this challenge.

I turn briefly to my other amendment, which is short and to the point. Amendment 237 would add a new paragraph to ensure that Part 3 and Clause 80 come into force one year after Royal Assent. The Bill as it stands does not say when, or even if, Part 3 and Clause 80 will ever come into force. This is an oversight which would do our children and young people a great disservice. I am sure that is not the Government’s intention. When the Bill was debated in Committee in the other place, the Minister said he expected that Part 3 would be in effect 12 months after Royal Assent. This is a welcome expectation. However, to give certainty to all the organisations affected by Part 3 and video-on-demand providers who will need to adjust their age verification systems, there should be confirmation of that 12-month timetable by putting that commitment in the Bill. It seems to me that this lack of clarity stands at odds with the explicit commitment to commence other sections of the Bill to a specific timetable. Clause 89 sets out that six sections will come into force the day the Act passes, 17 sections and one schedule two months after Royal Assent, and one section on 1 June 2020. Every other section will depend on the Secretary of State bringing the relevant sections into force by regulations.

This situation with Part 3 is completely unsatisfactory. I urge the Minister to commit to the timetable set out in the other place by tabling an amendment on Report to ensure the child protection measures we have debated will come into effect a year after Royal Assent, and to place on notice all those providing commercial pornographic websites that they will need to prepare to comply with the age verification requirements in Part 3. I look forward to hearing what the Minister has to say in response to my questions and very much hope that the Government will accept my amendments.

--- Later in debate ---

[Baroness Benjamin]

My Lords, I was very grateful to the Minister, Matt Hancock, and to the noble Lord, Lord Ashton, who met concerned parliamentarians to discuss the Government’s thinking about how to move forward on this issue. I look forward to seeing the wording around what will and will not be prohibited in order to ensure that the protections that apply offline also apply online. I believe that we need to build on the consensus in this House that children should be protected from harmful content online and I firmly believe that prohibited content is harmful to children.

The BBFC’s harm test under the Video Recordings Act, on which the definition of prohibited content is based, has proved to be an effective child protection standard offline with DVDs, and online with UK-regulated video-on-demand content. So I ask the Minister for an assurance that the Government remain committed to keeping prohibited content in the Bill. Most importantly, I ask the Minister to confirm that prohibited content will include content which covers simulated sexual abuse of child characters—and I stress sexual abuse in the widest sense, and not limited to rape and incest fantasies. I also want an assurance that the prohibited content I have set out covers not only realistic portrayals of children but CGI material. If this legislation is to be future-proofed, it is vital that CGI portrayals of child sex abuse are prohibited. I would welcome the Minister’s assurance that this will be the case.

This is not about freedom of speech, civil liberties, censorship or invasion of privacy; it is about the bigger case of putting children first, and of protecting and safeguarding our innocent children from harm. I often find myself in agreement with the Opposition Front Bench—but not on these amendments, which take too much risk with child safety. So I urge your Lordships to consider the implications very carefully before pursuing the wholesale removal of prohibited material from Clause 22.

[Lord Ashton of Hyde]

My Lords, this is an important debate, dealing not just with age verification but whether prohibited material should be included. I do not want to stand here and defend opposition amendments or put words into the mouth of the noble Baroness, Lady Jones, who can correct me if I am wrong, but I do not think that the object of the exercise was to completely get rid of prohibited material; it was to raise the extent to which the definitions may have exceeded what was originally intended. I say to the noble Lord, Lord Browne, and others that the point is that the current definition of prohibited material in the Bill allows the BBFC to consider content based on its existing hard-copy guidelines. We recognise that some think this goes too far and therefore we are continuing to listen to views on that. On the other hand, asking the regulator to consider only classifiable pornographic content creates the real risk that more extreme content will proliferate further.

I realise that it would have been easier if we had had a definition in front of us today. I know that we have discussed this with various noble Lords. The noble Lord, Lord Clement-Jones, is obviously teasing me because he knows that it takes time. As a lawyer, he will know that these issues are complex, and we have to make sure that all parts of government are happy with the wording. I shall repeat, for the benefit of the noble Baroness, Lady Benjamin, and other noble Lords, the important bits of what I said this morning. It is our intention to protect children from harmful content. Therefore, we have listened to the arguments that, in so doing, the drafting of the Bill may have unintentionally extended the powers of the regulator too far.

I committed this morning—and do so again—to giving this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I repeat my offer to discuss this with interested Peers. I think that the noble Lord, Lord Browne, and the noble Baroness, Lady Howe, can be temporarily satisfied that we do not intend to get rid of prohibited material entirely. There is not much more to say at the moment, but we will come back to this on Report. In the meantime, I would be grateful if the noble Baroness would withdraw her amendment.

--- Later in debate ---

[Lord Clement-Jones]

I do not want to overload the Front-Bench contributions from this side, or to turn this into a mutual admiration society, but I want to say that the noble Earl, Lord Erroll, has played a blinder in educating many of us in this House about the possibilities and the technologies being developed on anonymised age verification. As the Minister probably knows, we had a very useful session with many of those developing new apps for this precise purpose. Yoti was one, VeriMe was another—one could go on. There are different types of age verification, which can be chosen by the consumer. The most recent, which is now virtually available for general use, is Yoti, which the noble Earl mentioned. These methods are now available for use; this is not a question of pie in the sky, or of things not being available for a year or so. That makes the amendment highly practical, and, as my noble friend said, it is absolutely essential for the protection of personal privacy.

[Baroness Benjamin]

My Lords, I support the amendment and congratulate the noble Earl on all the hard work he has done. Six months ago I told him to get on with it, and he certainly has. We had a presentation, and I was so impressed by the progress that has been made in this area. Congratulations, and I thank him very much for all that he and his colleagues are doing to make sure that our children are safe, and that people feel that their data are protected if they go online for age verification.

[Baroness Jones of Whitchurch]

I support the comments that have been made by a number of noble Lords. I think we all understand the need for particular care to protect the identity of those who are over 18 and legitimately want to access pornographic sites. Apart from anything else, as has been said, we must protect those individuals from blackmail threats.

In this respect, the age verification process has to be more rigorous in providing anonymity than other regulations where proof of credit card details may have sufficed, but may also have made identification of the individual all too easy. The noble Baroness, Lady Howe, is not in her place, but I understand that the site that does the gambling checks does it on the basis of credit card details. Clearly, that would not be appropriate in the context of the issues we are grappling with here.

Thankfully, as we have heard, the technology is catching up with the need and there are now new age verification provider sites that can carry out the age checks. I am grateful to the noble Earl, Lord Erroll, for explaining in some detail how that works; it is all very reassuring. I do not think I have anything else to add: we have a consensus that some such measure needs to be built into the legislation, and I hope the Minister will agree with us.

Digital Economy Bill

Baroness Benjamin Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Viscount Colville of Culross]

My Lords, I support Amendment 226A. This is an important attempt to future-proof the prominence of PSB channels on electronic programming guides, which is essential if we are going to bring younger audiences to PSB output. As Sharon White, the chief executive of Ofcom, said:

“Public service broadcasting continues to deliver TV that is enjoyed and valued by millions of viewers across the UK.


More people are watching online or on demand, and this presents challenges as well as opportunities for public service broadcasters. They must continue to find new ways of connecting with audiences, and the PSB system needs to evolve to ensure it remains effective in the digital age”.


The prominence of PSB online services has to be safeguarded in the face of what I see as a determined effort by commercial rivals and some manufacturers to downgrade them. These services need to be easily accessible to viewers and, as many other noble Lords have said, they are not covered by the Communications Act.

I draw your Lordships’ attention to two services provided by the BBC online which show how important it is that they should have prominence on any EPG in the future. BBC iPlayer has been an astonishing success, especially for younger viewers and listeners. In June 2016, there were 290 million requests for radio and television programmes to be downloaded—a 9% increase from the previous year. I know, from when I worked on “Horizon”, the BBC science strand, that the overnight ratings would almost double in the following months from people downloading the programme on iPlayer. At the moment, in some cases, it is hard to find this service on the EPGs.

We also have no idea what other on-demand channels will be launched in future by the PSBs. An example of what these might include is the service that is being mooted by the BBC, which it hopes to be able to launch in 18 months’ time, called BBC Ideas. It will bring together the BBC’s output across all platforms—radio, television and online—in arts, culture, science and history. It will place them alongside interesting new ideas from partners in leading arts, science and cultural institutions. The hope is that the audience will have their minds stretched and even thrilled by the interchange of ideas in a place where art meets medical science or where history meets theatrical performance. As things stand, there are many smart TVs and set-top boxes which will not give prominence to services such as these. In some cases, this is because the platform providers are also the content providers. I am sure that in the fast-growing area of smart televisions there will be relationships between television manufacturers and content providers which will favour the latter.

If public money is being spent on PSB online content provision, we have a duty to ensure that, in future, viewers should be able to access this content easily. I urge the Minister to accept this amendment.

[Baroness Benjamin (LD)]

My Lords, I support this amendment. I too am concerned that it is becoming more and more difficult to find BBC programmes on new, connected televisions, particularly, as we have heard, programmes for children. On one new platform, it takes 22 clicks on the remote to get to the home screen of CBBC. Parents know that BBC content for children is both high quality and educational but, worryingly, it is not easy to find on many platforms and televisions, especially for new parents. I agree with other noble Lords that the legislation is out of date. On one platform, CBBC and CBeebies, broadcasting UK-produced content, are buried beneath 14 commercial children’s channels in the guide. Many of these show American content. I hope that the Minister will commit to updating the legislation to ensure that children’s BBC content is prominent on all platforms.

--- Later in debate ---

[Baroness Benjamin]

My Lords, this amendment is of crucial importance because, unlike the age verification provisions that we have considered in Part 3, which provide protection for children only from 18-rated pornographic material, the filtering provisions engaged by this amendment help to protect adult content in the round, including gambling, violence, self-harm and so on.

We should be in no doubt about the importance of adult content filters. However, I have a question for the Minister. This amendment effectively says to an ISP that if it wants to provide adult content filters it can do so legally in the UK. This is helpful for the 88% of the market that is covered by the agreement between the big four ISPs to provide unavoidable choice or default-on adult content options. So what is the Government's policy in relation to the remaining 12%? If it is really important that the big four provide unavoidable choice or default-on adult content options during the set-up, why is it not equally important that the smaller ISPs do the same?

I am not interested in whether or not it is strictly necessary under EU law. I am simply concerned that we should have the best protections in place for all children—those whose parents use one of the four largest ISPs and those whose parents do not.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support these two amendments. As the noble Lord knows, they have been the subject of considerable discussion and debate in the past. We all share the objective of allowing family-friendly filters to remain on internet services and mobile networks in the UK. As the noble Lord set out, the arrangements we currently have in the UK were brought into question by the EU net neutrality rules introduced last year, which appeared to ban individual countries from restricting access in this way. Since then, there have been a number of different interpretations of how the EU rules would affect the UK—perhaps complicated by the fact the Ministers themselves were not able to clarify the situation with their usual adeptness. Indeed, it still appears that the EU open access regulations and our commitment to family friendly filters are in some ways in contradiction.

The Minister will know that many of the internet companies have taken the view that the less said about this issue the better. Their argument is that if attention is not drawn to the contradiction, they can carry on with the previous practice—under the wire, so to speak. Of course, for a lot of reasons this is not a very attractive proposition, and we accept that it would make the status of family-friendly filters more vulnerable as time went on.

So, instead we have the amendments tabled by the Minister today. When I asked at a previous meeting with the Minister whether the amendments had been checked out legally, I was assured that this was the case. We have not seen that legal advice and therefore have to take it on trust that what is before us today is legally watertight and does not contravene EU rules.

To some extent we are taking all of this on trust. While it would be easy to demand more evidence, I accept that it would not help the case of those committed to family-friendly filters—I suspect that the more we probe, the more the robustness of the proposals before us could unravel. We support the intent behind these amendments and it is certainly not our intention to bring them into question in any way. I hope that they achieve the outcome to which we are all committed. I hope therefore that noble Lords will support the amendment.

Digital Economy Bill

Baroness Benjamin Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

Moved by

[Baroness Benjamin]

229: After Clause 84, insert the following new Clause—
“Original programmes for children and young people
After section 289 of the Communications Act 2003 (regional matters in the public teletext service) insert— “289A Original programmes for children and young people(1) The regulatory regime for every licensed public service channel must include the conditions that OFCOM consider appropriate for securing—(a) that the programmes included in the channel include high quality original programmes for children and young people;(b) that the programmes for children and young people included in the service are of a suitable range;(c) that the programmes for children and young people so included are broadcast for viewing at appropriate times.(2) The regulatory regime must also include conditions that OFCOM consider appropriate for securing that, in each year—(a) the time allocated to the broadcasting of programmes for children included in the service, and(b) the time allocated to the broadcasting of programmes for young people so included,constitute no less than what appears to OFCOM to be an appropriate proportion of the time allocated to the broadcasting of all the programmes included in the channel.(3) Before determining for the purposes of this section the proportionate time to be allocated to the broadcasting of programmes for children and young people, OFCOM must consult the provider of the channel, or, as the case may be, the person who is proposing to provide it.(4) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a license, by compliance with section 3(4)(b) of the Broadcasting Act 1990 (licences under Part I).””

[Baroness Benjamin (LD)]

My Lords, I will speak to my Amendment 229, which aims to move children’s content on public service broadcasting from tier 3 back to tier 2. The amendment is also in the names of my noble friend Lady Bonham-Carter and the noble Baroness, Lady Jones. I declare an interest as per the register.

My amendment seeks to underline the fact that we are at a pivotal point in the future of the children’s production industry and quality UK-produced content for our children. This is without doubt the best opportunity in a generation to make a legislative change that could revive and strengthen a successful industry that not only nurtures our nation’s youngsters but projects Britain around the world.

Yes, we have over 30 dedicated children’s channels, but the majority do not show UK-produced programmes. They usually show acquired animated cartoons, made abroad. This means that our UK children’s production industry is in decline. Thank goodness for the BBC, with its successful CBeebies and CBBC channels. However, we cannot expect the BBC to bear the burden of producing the majority of British-made children’s programming. Some might point out that there has been a slight increase in the investment from commercial broadcasters for children’s productions, but it is just a drop in the ocean considering the large profits they have made over the past year.

To be clear, this amendment is not relevant to all commercial broadcasters, such as Disney, Nickelodeon or Cartoon Network. It is relevant only to public service broadcasters, especially commercial broadcasters, which each have been allocated PSB status and the benefits that go with that. Therefore, public service broadcasters should be producing content for everyone, and that includes children.

The amendment I have introduced has cross-party support and is timely. It aims to do two things: first, to give Ofcom the ability to require public service broadcasters to commission more original British-made Nickelodeon children’s content in the future; and, secondly, to give flexibility to the commercial PSBs, in consultation with Ofcom, around the level of their future investment in children’s content. This is a common- sense approach that could easily be embraced.

As I have said many times in this House, PSB investment, in particular from commercial PSBs, has reduced drastically over the past 10 years—by an overwhelming 93% since 2003. This decline started when the Communications Act 2003 reversed the Ofcom requirement for PSBs to commission a certain level of children’s content, by moving it from tier 2 to tier 3. Recent tax reliefs for animation and children’s live action content have provided a welcome boost for the sector, but they have not brought the commercial PSBs back to the table, which was expected. The Government’s pilot contestable fund over the next three years will work only if PSBs are required to commission more content.

The Save Kids’ Content UK campaign, supported by the whole industry and PACT, is very clear that requiring PSBs to commission a certain level of content is the only way to secure the future of this sector and Great British content in the future. All other options proposed are merely a short-term fix. Ofcom has repeatedly reported that it does not have the legislative tools to change the current situation. It pointed out during its last PSB review that there is a substantive risk that PSB requirements in this area will not be met in the future for our children. This is so distressing that it breaks my heart.

I understand that we have to be realistic and not demand that the commercial PSBs commission or compete with what the BBC is already doing. We know that children are viewing content in all sorts of ways, but the important word here is “content”. No matter how children view content, it must be relevant and reflect their culture and surroundings. Having said that, a recent Ofcom review showed that television viewing was still by far the most popular way of watching content.

It is also important to remember that, although investment in original British programming for children is in serious decline, television still remains a huge influence on young people today. According to research by the London School of Economics, 96% of children aged five to 15 use a TV set to watch television and 87% of viewing among 14 to 15 year-olds is on broadcast television. So it is absolutely vital that children have access to UK-made content that is not only entertaining and informative but also that our children can identify with.

As I said before, my amendment is a common-sense approach to the problem. The key element is that broadcasters will be consulted on the level of investment appropriate to each channel. It is definitely not a quota system, nor does it only apply to commercial PSBs; it also applies to the BBC, which already has good levels of investment, but the amendment would ensure that this investment is maintained into the future.

ITV has made recent investments, but what happens if it gets taken over? There is no legislation in place to ensure that new owners should provide any adequate children’s productions at all. Channel 4 has specific obligations for older children. Because of successful lobbying, it has recently committed to invest in children’s. Their production of “We’re Going on a Bear Hunt” was one of the most watched programmes over Christmas, which shows that there is an appetite for that type of content which, I am sure, will be sold worldwide. Channel 5 has “milkshake!”, an established, successful strand for pre-school, but it spends very little on new, original UK content. Most of its programmes are acquired.

All of the commercial PSBs do a bit, but there are areas where children’s provision is lacking, and they all need to do more to serve our children’s cultural appetites. The latest figures from Ofcom show that UK children’s programming decreased yet again in both spend and output in 2015. Spend on first-run UK-originated children’s programming stood at £77 million in 2015, a year-on-year decrease of 13% in real terms. This cannot go on indefinitely.

We understand that PSBs may well have concerns about the imposition of requirements or how the amendment is able to accommodate the changing viewing habits in this digital world. This is why the flexibility that has been built into this amendment is crucial. The amendment strikes a balance between giving Ofcom the muscle to require children’s content from PSBs, which it does not have at the moment, and allowing the level of investment to be determined through consultation between Ofcom and each broadcaster, and coming to a reasonable agreement. The amendment will require a variation of each broadcaster’s licence.

There is also flexibility around the genres that Ofcom could choose to include in any requirements. The amendment refers to a “suitable range” of content. This can be tailored appropriately to each channel and would take into account content broadcast on a main channel, on a subsidiary channel or online. Surely this should allay any fears or doubts. This amendment has deliberately built in the flexibility to allow broadcasters to use digital and interactive content across all platforms. It is not intended to dictate how, where or what children should watch. It is about ensuring that there is a range of quality British content available on all platforms.

Some may say, “How do we know Ofcom will decide what is reasonable?”. I was on the advisory board of Ofcom for three years, and I know from experience that Ofcom has always erred on the side of caution when it comes to avoiding anything that would damage the industry. Over the last 14 years of its history, its reputation has been exemplary.

As I mentioned earlier, the Government have announced the introduction of a contestable fund, and children’s programming will be in line to receive some of the funding. At the moment the fund is time-limited to three years. I strongly believe that my amendment could ensure that that money is used in the most productive and constructive way. The fund could be used to develop programme ideas for children which the PSBs could then commission, having had all the development work funded.

The UK children’s production sector has always had a strong international presence, which adds to the UK’s economy, and it is proud of that. At the moment, however, our UK children’s production sector is facing many challenges because the market for producing children’s UK original content is shrinking rapidly, while the demand for quality children’s programmes remain vigorous. There are many opportunities for global partnerships through co-productions, so we desperately need commissions for those partnerships to work. It would be short-sighted to cut the cord of a continuing British success story, but more importantly we need UK creative original content to be produced to influence our children’s imagination and thinking as well as their emotional, mental and inspirational well-being. We owe it to them and must not let them down, so we must use this opportunity to provide the means to fulfil their needs.

This is why my amendment is asking the Government to take another look at the issues and change legislation to secure the long-term future and sustainability of the UK children’s content production sector. I firmly believe that only a change to primary legislation will give Ofcom the necessary tools to require commercial PSBs to provide British-made children’s programming and give PSBs the opportunity to show their commitment to the nation’s children by saving UK kids production content. We must not let this great opportunity fall by the wayside. The future of Great British content for our children that will last long into the future is now in the hands of the Government. I beg to move.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, Amendment 229 addresses the important issue of children’s television, something that I know the House and this Committee rightly feel strongly about. I thank noble Lords for their speeches, in particular the noble Lord, Lord Gordon of Strathblane, for pointing out some of the problems, particularly that of advertising revenue for commercial PSBs. Children’s programming has been and remains a very important aspect of the UK’s public service broadcasting system. The provision of a range of high-quality children’s programming must be a priority for public service broadcasting. Ofcom has an oversight role for the system as a whole, and indeed has found that more than eight in 10 people think that the PSB system,

“provides a wide range of high quality and UK made programmes for children”.

The BBC, as has been mentioned by many noble Lords, remains a particularly strong provider of UK-originated children’s content. That is why the new BBC charter and framework agreement make it clear that Ofcom must have particular regard to setting requirements for key public service genres like children’s programming. But as many parents will know, children now consume content via an increasing range of platforms and providers. Ofcom has found that children are watching 25% less broadcast TV than they did five years ago. The Government therefore want to support the provision and plurality of children’s content.

As the noble Baroness, Lady Benjamin, has reminded us, we are going to pilot a contestable fund for underserved public service content, with children’s content a potential key area. We expect to see the commercial public service broadcasters work closely with the contestable fund and commission more children’s content. If this does not happen, the Government will be prepared to consider whether further action is needed. It is a pilot and we will have to see where it goes. Beyond that, the Government have also extended tax relief for animation and high-end TV programmes to UK children’s programmes because, as the noble Baroness, Lady Bonham-Carter, pointed out, we recognise the tremendous benefit to the economy of the creative industries. There are also other positive developments led by the market. An example which has been mentioned is that this year, Netflix will make its first British children’s programmes. I therefore believe that additional regulation in such a fast-developing area at this time is not in the interests of a diverse and vibrant children’s TV landscape in the UK.

With that explanation, I hope the noble Baroness feels able to withdraw her amendment.

[Baroness Benjamin]

My Lords, I thank the Minister for his response. I also thank all noble Lords who have supported this amendment, or partly supported it. I am especially grateful to my noble friend Lady Bonham-Carter and the noble Baroness, Lady Jones, for putting their names to the amendment and supporting it so strongly. However, I am rather disappointed with the line the Minister has taken, as this is an opportunity to put in place a robust piece of legislation that would guarantee the future of original content made in Britain, not just on the BBC but on commercial PSBs. They are doing their bit, yes; but I want to see that being sustainable and this amendment would ensure that that happens.

We do not need more cartoons and imported programmes, which is what the majority of commercial broadcasters are offering. What we need, what the children need, are quality, UK-produced programmes. Children’s productions have always made a huge contribution to the UK economy from their international sales. We need that to continue. We are not looking for huge amounts of investment from the commercial PSBs, just what the broadcasters feel, after discussion, that they can afford. They are doing so; I want them to continue to feel that they can afford to invest in children. I want a guarantee from them, but there is no guarantee—there is no framework for them to guarantee such a thing. As I said, Ofcom often finds itself in an impossible position on this issue and can sometimes look ineffective and inadequate, because even though it proves through research that more provision for children is needed from commercial PSBs, they cannot do anything about it, as the legislation prevents them doing so.

Throughout the passage of the Bill we have talked about safeguarding and protection. Well, this amendment is about safeguarding and protecting our children’s production sector and ensuring that it continues. The sentiments behind the amendment, which I believe are sensible and reasonable, are transparency and trust—it was in that spirit that I kept the Minister regularly informed. I also engaged with Ofcom and the commercial PSBs to discuss my amendment and I have been waiting anxiously to see how the Government would respond. I am rather disappointed with what the Minister has just said.

We do not know who might own public service companies in the near future or whether they will feel obliged to provide British content for our children. Therefore, I feel that we cannot and must not leave anything to chance. Also we cannot afford to waste precious time waiting to see how the market beds in and develops, as the Minister said, because it is highly unlikely that there will be another opportunity like this to return PSB children’s programming to tier 2 where it belongs and secure homemade programming for our children in the foreseeable future, rather than leave it languishing in tier 3 where we have seen it continue to decline over the past 10 years.

Throughout my 40 years working in children’s television I have personally witnessed the lasting legacy that British-made programmes have had on the nation’s children, who discovered themselves and their world. They knew they were loved, they felt special, because the programmes reflected their lives. We owe it to the generations to come to feel and experience that same thing. I am passionate and determined not to abandon our nation’s children and I hope that the Minister and the Government will walk that path with me by rethinking and reconsidering my amendment in more depth, as I cannot give an undertaking that we will not return to this issue on Report. However, at this stage, with a heavy heart, I beg leave to withdraw the amendment.

Amendment 229 withdrawn.

Digital Economy Bill

Baroness Benjamin Excerpts

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

[Baroness Butler-Sloss (CB)]

My Lords, I was wondering which of us would go first, so I apologise to the House for being a little slow.

I strongly support the work that the Government aim to do on age verification. It is admirable work and, as a former family judge, it is exactly what I would have hoped that this Government would do. I have therefore had no general involvement in the Bill until this moment—but I am concerned that their admirable work is likely to have the unintended consequences that the Minister says he does not intend to have.

The government amendments deleting “prohibited material” and putting in its place “extreme pornographic material” are giving a message which is of great concern to me. The Prime Minister has gone public, hugely to her credit, in saying that she wishes to eradicate domestic violence. But the impact on the public of a lack of online protection in relation to prohibited materials, by changing the reference to extreme pornography, will inevitably leave a gap. Although the Government say that it will not, it seems obvious that it will leave a gap—which means that serious violent porn will not, if this legislation goes through, be covered in the way that extreme, violent pornographic material will be.

This is an opportunity for those disposed to violence, particularly in the home against spouses and partners, to see it online before they try it out in their own home. Perhaps I may give your Lordships one rather telling example of how this impacts not only on women. Many women out there, some of whom have already been polled, will be absolutely astonished and some, I believe, are outraged by the idea that this degree of violent porn online will not now be part of what is restricted. But I had a case on one occasion of two children, aged about 10 and 11, who kept the television on as loud as they could so that they could not hear their father beating their mother. Day after day they sheltered in the kitchen, away from what was happening in the front room.

The message is what worries me. Perhaps the message is even more important than the wording because the extreme, violent pornography may be identified as something which would not include a great deal of serious, violent porn—whatever the Government might say. This is the matter that has brought me to table an amendment and to speak to your Lordships today. There is some flawed Crown Prosecution Service guidance, but I do not propose to say anything about it as I hope that other noble Lords will do so.

We are facing a vast number of amendments from the Government on the second day of Report, without any prior consultation or any opportunity in Committee for noble Lords to ask rather more about the likely consequences, intended or unintended, of these amendments. So I have tabled Amendment 25YD—I thank noble Lords for telling me which one it is; there are such a lot of Ys—saying that there should be two aspects: first, that the use of the words “extreme pornographic material” in the place of “prohibited materials” should not last for more than three years; and, secondly, that in two years, by regulation, the Government should be looking at, reviewing and reporting on whether this has had any adverse effect. I have to say that I would be very surprised if it had not.

I am grateful to the Secretary of State for a very helpful letter in which he says that the Government are looking at a Green Paper followed by a White Paper. I am also grateful to three Ministers for coming to a meeting. I asked, although it is likely that I already knew the answer, whether, after the White Paper, there would be legislation. However, we have Brexit. I was hearing only this morning how many Bills in addition to the great repeal Bill will need to be brought through this House as well as the other place in the 18 months to two years before we come to the end of Article 50 and leave the EU. The likelihood of getting legislation in the next two years to deal with the sort of violent porn that I am talking about is really remote. I am concerned about the damage that it may do to women and also, inevitably, to children, if the man and the woman have children. However young they are, the children will suffer as well as the women—and, sometimes, the men.

That is the general background to this somewhat elaborate amendment. I hope it may find favour with the House.

[Baroness Benjamin (LD)]

My Lords, I am very pleased to hear the Minister say that the remit of the IWF is to be extended and that soon it will be able to remove these images wherever in the world we see child abuse images stored. At present the IWF can take down only UK-stored images. Every day that passes sees the increasing abuse of innocent children because of these images. When can we expect to see the IWF given all the necessary powers to take down any child abuse images that are ever seen on the internet, in line with the offline as well as the online policy that the BBFC has? On this International Day of Happiness, I thank the Government for ensuring that children will be safeguarded and will not be able to see abusive pornographic material anywhere, and that as soon as possible the IWF will be given all the powers it needs to make sure that we do not harm children anywhere in the world.

[The Lord Bishop of Leeds]

My Lords, it seems odd in a society such as ours that we are even thinking about how to give access to violent pornography or trying to mitigate it in some way. It seems clear to me that most of us sitting in this House probably have less idea of how online digital communications work than a five year-old. Children—my grandchildren’s generation —are very adept and almost intuit how to do this stuff. The technology is advancing so quickly—more quickly than we can imagine—and you can bet your life that many of our children will find ways around it more quickly than we can set down laws. What is online ought to be held at least to the standard of what is appropriate for offline, because it is online that children, as well as young people and adults, will access this stuff, and it is too easy. If the higher standard applies to offline, surely it ought to be maintained for online communications. Otherwise, we are saying that this is acceptable for the common good and that it represents an acceptable anthropology—our understanding of what a human being is—in which we are happy to normalise violence, the commodification of people and sex, and even the exploitation, not just for sexual purposes but for commercial profit, of something that ought to be held in higher regard.

Digital Economy Bill

Baroness Benjamin Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 29th March 2017 Lords Chamber

Moved by

[Baroness Benjamin]

33ZZA: After Clause 82, insert the following new Clause—
“Provision of children’s programmes
After section 289 of the Communications Act 2003 insert—
“Provision of children’s programmes289A Provision of children’s programmes(1) OFCOM may, if they think fit, publish criteria to be applied in accordance with this section to the provision of children’s programmes.(2) Where criteria are published by OFCOM, the regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that the provision of children’s programmes meets the criteria.(3) Any condition imposed by virtue of this section—(a) must relate only to the provision of children’s programmes on the licensed public service channel concerned;(b) must take into account OFCOM’s assessment of the provision of children’s programmes on all related services.(4) “Related services” in relation to a Channel 3 service means—(a) that service,(b) all other Channel 3 services, and(c) all services within subsection (6) that appear to OFCOM to have a sufficient connection with any Channel 3 service.(5) “Related services” in relation to any other licensed public service channel means—(a) that channel, and (b) all services within subsection (6) that appear to OFCOM to have a sufficient connection with that channel.(6) A service is within this subsection if—(a) it is available for reception in the United Kingdom, and(b) it is provided without any consideration being required for its reception, disregarding any requirement to pay sums in accordance with regulations under section 365.(7) For the purposes of an assessment under subsection (3)(b) no account is to be taken of whether a programme is provided on a licensed public service channel or on another service.(8) Any condition imposed by virtue of this section must be the same for all regional Channel 3 services.(9) Any criteria published under this section must be published by OFCOM in a statement setting out the criteria and how they propose to apply them.(10) OFCOM may from time to time review and revise or withdraw the criteria by publishing a further statement.(11) Where OFCOM revise or withdraw criteria, they must take any steps they consider necessary in consequence in relation to conditions imposed by virtue of this section.(12) OFCOM must—(a) carry out a public consultation for the purposes of any review under subsection (10);(b) where there are no published criteria for the time being, carry out a public consultation before publishing criteria under this section.(13) In this section “children’s programme” means a programme made—(a) for a television programme service or for an on-demand programme service, and(b) for viewing primarily by persons under the age of sixteen.””

[Baroness Benjamin (LD)]

My Lords, I declare an interest as per the register as I rise to speak to my Amendment 33ZZA, which is also in the names of the noble Lords, Lord Ashton and Lord Collins of Highbury, and my noble friend Lady Bonham-Carter.

This is an amendment to secure and protect the future of quality children’s television. It is a safeguarding measure for years to come, which makes me so happy, as it is a legacy. I moved a similar amendment in Committee and since then, I have spent considerable time talking to the Government, the DCMS, broadcasters —including ITV and Channel 4—Ofcom and many noble Lords across this House. I am very grateful for the support that I have received in drawing attention to this vital issue, an issue which I have been highlighting for several years. I want especially to thank the Producers Alliance for Cinema and Television, or PACT, and the Save Kids’ Content campaign for the enormous pressure that they have applied in this important matter.

I am also grateful for the support of the Government, the Secretary of State, the Minister and the Bill team in producing and agreeing today’s amendment. I thank them for recognising the importance of the amendment and for realising that it was an issue that needed to be dealt with at this point. They should be congratulated on having the vision to do so, because this is a moment of great importance for the future of the children’s production industry and of quality British content for our children and our grandchildren. This amendment has the potential to revitalise the production sector and increase the amount of children’s content which can be exported globally, which Britain has been known for over the years.

As I have said in this House many times, children’s programming is in serious decline. Yes, some new platforms are coming to the marketplace and investing, but spending on the production of new British children’s programming has declined by almost half since 2003, with spending by the commercial public service broadcasters falling by a staggering 93%. Quite shockingly, less than 1% of television hours available for our children are new, first-run British programmes; the rest are imports and repeats. It is our responsibility to make sure that this does not continue. Our children and our grandchildren are entitled to the provision of quality programming that was there for us. In many ways, that is even more crucial for children today, as television has the power to educate and inspire them for the future. As I always say, childhood lasts a lifetime. Instead of driving children towards watching unsuitable and inappropriate adult content, we need to ensure that appropriate content is available for them to identify with and to help shape their development and their imaginations.

Ofcom has recognised that there is a problem. In its last review of PSBs, it was clear that there is a “substantive risk” that PSB requirements for children’s programming in this area will not be met. Despite this risk, Ofcom has repeatedly reported that it does not have the legislative tools to make changes.

We must recognise that nothing other than legislative change will lead public service broadcasters to commission more new British children’s content. Therefore, we need to give Ofcom the tools to require new children’s content to be commissioned and produced by public service broadcasters.

However, I have always understood and recognised throughout this process that PSBs may well have concerns about a legislative change. Through my many discussions, I also became aware that broadcasters had some reservations about the amendment that I tabled in Committee. I have also always been clear that my intention is not to place a huge additional burden on broadcasters. I know that there are pressures on PSBs for a variety of reasons and I understand that it is only by collaboration between all parts of the industry that we will achieve the change necessary to ensure that the level of new British children’s content does not reduce further and indeed increases.

It is in the spirit of collaboration that my amendment today has been arrived at. It will give Ofcom the power to issue criteria addressing the provision of children’s programming by broadcasters. It also allows Ofcom to take into account content broadcast on a main channel, a subsidiary channel or online. It gives flexibility. I do not want to dictate how, where or what programming children should watch. All I want, passionately, is to ensure that there is a range of quality British content available on all platforms that reflects our country’s diversity and the diversity of our children so that they grow up happy and contented, knowing they belong to a great nation.

--- Later in debate ---

[Baroness Buscombe (Con)]

My Lords, Amendments 33ZZA and 35A concern the important issue of children’s television, which I know this House, rightly, feels strongly about. I thank the noble Baroness, Lady Benjamin, in particular for her passion and enthusiasm—and a great deal of energy—on this subject. I also thank the noble Baroness, Lady Howe of Idlicote, who is always so strong on these issues and has been for many years.

The provision of a range of high-quality children’s programming must be a priority for the UK’s public service broadcasting system. The BBC remains a particularly strong provider of UK-originated children’s content. The new BBC charter requires the BBC to support learning for children, and the framework agreement makes it clear that Ofcom must have particular regard to setting requirements for key public service genres such as children’s programming.

However, the commercial public service broadcasters —ITV, Channel 4 and Channel 5—have collectively been doing less and less since the Labour Government’s removal of children’s quotas in the Communications Act 2003. By 2014 the BBC accounted for 97% of total spending by PSB channels on children’s programmes. Clearly, this does not suggest a healthy market.

The Government share the view that this problem should be tackled, and we are committed to supporting the provision and plurality of children’s content to meet young audiences’ needs. To do this, the Government have extended the tax relief for animation and high-end TV programmes to UK children’s programmes. We have also consulted on a pilot contestable fund for underserved public service content, with children’s content as a potential area of focus. The consultation closed in February and we will publish our response in due course.

The Government hope that with this government support, the problem that the noble Baroness has identified over the past weeks and months will be resolved. Furthermore, we support the proposal to give Ofcom the power to look at this issue and, as a backstop, to introduce quotas on the commercial PSBs if it deems it necessary. The noble Baroness’s Amendment 33ZZA gives Ofcom the power to look at the provision of children’s content and impose quotas only if it believes there is inadequate provision. But, crucially, it does this in a way that works with PSBs’ commercial realities, and younger audiences’ needs.

As many parents will know, children now consume content on an increasing range of platforms, not just on the traditional PSB channels. Indeed, Ofcom has found that children watch a quarter less broadcast TV than they did five years ago, and that more than a quarter of children watch free on-demand services in a typical week. As a result, in giving Ofcom the power to consider imposing children’s quotas on the main PSB channels via their broadcasting licences, the amendment requires Ofcom to consider the provision of content across a PSB’s free-to-view UK portfolio, not just on its main channel. This means that Ofcom should consider children’s programming on a PSB’s main channel and its other UK free-to-view channels equally when assessing whether a quota may be necessary. Ofcom will also be able to take into account content on PSBs’ on-demand players.

Indeed, while the BBC is rightly considered to be the market leader in children’s TV content, its output is shown on its dedicated children’s channels: CBBC and CBeebies. Therefore, while the amendment does not apply to the BBC, we think it is right that any assessment of children’s TV provision by the commercial public service broadcasters is likewise able to take into account the provision on not only the main channels but their wider services, reflecting the changing nature of TV consumption for our young people and changing TV market dynamics.

Crucially, Ofcom will also be able to consider whichever criteria it deems appropriate in coming to a view on the provision of children’s content. Those criteria will be drawn up, where Ofcom deems them necessary, following public consultation. For example, Ofcom may choose to set as one of its criteria that an appropriate level of new UK children’s programming is available across the PSBs and their related services. This would help drive UK investment and ensure that younger audiences see themselves reflected in the programming that they watch.

It is the policy intention that Amendment 33ZZA will also work with Section 3 of the Broadcasting Act 1990. Under that section, Ofcom must allow a PSB,

“a reasonable opportunity of making representations”,

about a proposed variation of its broadcasting licence. It is also the policy intention that the amendment requires Ofcom to set the same licence condition in each of the Channel 3 regional licences to ensure that the regime does not impose disproportionate burdens on ITV.

We will gladly support amendments that protect and enhance the UK’s public service broadcasting system. That commitment from the Government will echo through this evening’s debate, with support for the BBC and commitments on listed events and children’s television. Again, I thank the noble Baroness for her vital contributions on this subject. The Government will support her amendments.

The noble Baroness asked about timings and content. It is very important that we leave the timings up to Ofcom. The content criteria are also a matter for Ofcom, subject to consultation, as I think I have already made clear. I agree with the noble Baroness, Lady Jones, that we hope that this will not just sit on the statute book. We hope that Ofcom has heard the message loud and clear but the onus is on Ofcom to take this further.

I should also say that Amendment 35A provides for commencement so that the Government cannot block Ofcom from acting. On that basis, we are pleased to accept Amendment 33ZZA.

[Baroness Benjamin]

My Lords, it is moments such as this that demonstrate the importance of this House, with everyone working together for the good of the nation, in this case especially our children. I thank the Minister for her support for the amendment, and all noble Lords who have taken part in this debate—especially the noble Baroness, Lady Howe, who I greatly admire—and previous debates. In particular, I am extremely grateful to my noble friend Lady Bonham-Carter and the noble Lord, Lord Collins, for putting their names to the amendment. I also thank the noble Baroness, Lady Jones of Whitchurch, for her support both in Committee and today, and the noble Lord, Lord Stevenson of Balmacara, for his support to date.

As I mentioned in my opening speech, this is a crucial moment for the future of British children’s television. If used properly, the amendment has the potential to halt and steadily reverse the decline of the children’s production sector. It has been a long journey of persuasion, perseverance and determination so I am thrilled that we have reached a consensus that it is vital for Ofcom to urgently use the powers that the amendment will give it to deliver real change and to focus on the production of imaginative and creative new British programming for our children and grandchildren. I and others will be keeping a very close eye on the use of these powers to make sure that real change is achieved. I thank the Minister for her assurance on this point.

I feel so optimistic about the future of our children’s programming industry, which I am so passionate about, and I look forward to seeing this industry deliver even more of the world-renowned programming it is capable of. I believe that if there are good programmes on PSBs, children will watch loyally and will not be driven away to other places. Content matters for children and they will stay with a channel and watch it. I hope that all the broadcasters will take ownership of this gift to our children and embrace this new legislation graciously and wholeheartedly. So it is with a joyful heart and a huge smile that I beg to move.

Amendment 33ZZA agreed.

Digital Economy Bill

Baroness Benjamin Excerpts

Report: 3rd sitting (Hansard - continued): House of Lords
Wednesday 29th March 2017 Lords Chamber

[Lord McColl of Dulwich (Con)]

My Lords, I am very pleased to have been able to put my name to this amendment, which is also in the names of the noble Baroness, Lady Howe, and the noble Lord, Lord Collins. I commend the noble Baroness, Lady Howe, for all the work she has done in this important area and for her persistence in ensuring that we have the best internet filtering options available.

The noble Baroness’s amendment comes only a week after the House of Lords Communications Select Committee published its report, Growing up with the Internet. Most of us will need to read it carefully, as it has some important things to say about internet filtering which I hope the Government will consider as they put together their promised Green Paper on internet safety. I am concerned that the committee’s report says on page 3 that,

“self-regulation by industry is failing”.

Indeed, it makes me wonder whether we will need to revisit Clause 91 at some point so that it goes further in mandating all internet service providers to provide filtering.

For the time being, I am glad that the Government have taken measures to ensure that family-friendly filtering can continue to operate under the EU rules on net neutrality for both internet service providers and mobile phone operators. I am also glad that they will be hosting conversations which will be influenced by the noble Lords’ report on what is needed to ensure the best interests of children.

The internet, mobile phones and young people go together. If they did not, we would not have needed the age verification plans that the Government have introduced under Part 3. Last year, Ofcom’s annual report on children’s media use showed that, for the first time, children’s internet use overtook their use of TV. Some 79% of 12 to 15 year-olds own a smartphone. This is technology in our teens’ pockets with no 9 pm watershed. While there is an automatic adult bar in place on smartphones, 46% of parents of 12 to 15 year- olds do not know whether it is in place or not.

Internet network filtering is another option for parents as they raise digital natives. While Part 3 seeks to tackle children’s access to pornography, filters on both mobile phones and home broadband can target other adult content, including violence and drugs. The ISPs offer customised filtering and different variations of the filtering options. When the big four ISPs agreed to provide family-friendly filtering, the Government asked Ofcom to produce a series of reports on how their commitment was progressing. Amendment 33ZLA is an extension of that requirement and would apply to all ISPs for the first time—big and small—and to mobile phone operators.

My noble friend Lady Shields described internet filters as,

“a vital tool for parents”.—[Official Report, 5/11/15; col. 1799.]

I agree, but I am concerned about the transparency of options for parents, especially in relation to the smaller ISPs. A mystery shopper exercise revealed that, when asked on the phone about filtering provision, some smaller ISPs were able to say whether filtering was offered, but seven were unable to confirm either way.

In this context it seems to me that, having conceded that Ofcom should report on some of the filtering policies of some ISPs, it makes no sense not to cover the smaller providers. Indeed, it is in respect of them that the need for a review is greatest—although the review of the four larger providers is vital and must continue. The findings of the last report were very useful.

These options need to be clearly set out to parents, and I support the requirement in Amendment 33ZLA that Ofcom should produce a report every two years setting out what all the mobile phone operators and ISPs are doing—or not doing—on internet filtering. This state-of-the-nation filtering report would serve two key purposes. First, it would help to bring greater clarity and transparency, which would be invaluable for policymakers, especially in the context of the Green Paper and beyond. Secondly, the data could also help inform parents of their options for filtering, so that they would not have to go to multiple websites, with differing levels of transparency, and try to work out the differing options.

I hope that, if this information is more accessible to parents, it will empower them to make the right ISP choice for their family and will increase their take-up of filters. The use of home network filters has been increasing over the last few years but they are still used by only about a third of parents. There are 7.96 million families with dependent children in the UK, and 99% of these households have fixed broadband. By my calculations, that means that 5.25 million households do not use internet filtering. Some parents have deliberately chosen not to use filtering, but 42% of parents of 12 to 15 year-olds do not know about internet filters. I hope that our Amendment 33ZLA will help provide the support and information they need.

This proposal is quite modest and fully in line with the intentions of the Government’s Green Paper on internet safety, which has as an objective,

“helping parents face up to the dangers and discuss them with children”.

Indeed, it is difficult for the Government to argue against this, given that they have established the relevant precedent by helpfully asking Ofcom to review some of the ISPs’ filtering practices. I hope that the House will support Amendment 33ZLA to ensure that Ofcom reports on all ISPs, big and small.

[Baroness Benjamin (LD)]

My Lords, I support Amendment 33ZLA, which would require Ofcom to report on internet filtering. I, too, thank the noble Baroness, Lady Howe, for persistently raising this issue in the House, and I welcomed the Government’s proposal at Second Reading to bring forward an amendment on filtering.

As we have already heard, last week the Communications Select Committee, on which I sit, published its report, Growing up with the Internet, which covered the important subject of internet filters.

We should not be lulled into complacency by Part 3 of the Bill. Although it is very welcome, it deals only with children’s access to pornography and not to any of the other subjects covered by internet filtering. The Select Committee heard of a,

“worrying rise in unhappy and anxious children emerging alongside the upward trend of childhood internet use”.

This is a sobering reminder that there are many challenges ahead of us.

I hope that the Government will read our report carefully as they prepare their Green Paper on internet safety. In doing so, I particularly hope that they will review the committee’s two recommendations on internet filters. On page 60, the report recommends that,

“all ISPs and mobile network operators should be required not only to offer child-friendly content control filters, but also for those filters to be ‘on’ by default for all customers. Adult customers should be able to switch off such filters”.

We also recommend:

“Filter systems should be designed to an agreed minimum standard”.


In this context, while the Government’s Committee stage amendment, which basically says to ISPs, “You may provide filtering if you want to, but, equally, you don’t have to if you don’t want to”, is clearly problematic. As we move towards the Green Paper we must look to require all ISPs that service homes among their customer base to provide unavoidable choice—or, better still, default-on adult-content filtering options.

I know that the Minister gave us assurances that the Internet Service Providers’ Association was going to encourage its members to consider what was appropriate for their customer base. But, given the strong messages in our report for child-centred design, I am not convinced that that is enough—unless an ISP is solely for businesses.

I hope that the Government will review their position on internet filtering in the light of our report and that, in the meantime, they will support this modest but important amendment. It will give policymakers a clear picture of the landscape of what is and is not being provided by ISPs. Having conceded that it is appropriate to ask Ofcom to review the approach of some ISPs to adult-content filters, logically they should be looking at the conduct of all ISPs that service homes. This is especially important in relation to smaller ISPs whose practices and standards are often less accessible. This will really help the preparation for the Green Paper.

The information should also be provided to consumers on the Ofcom website on the web page Advice for Consumers. We need to put as many tools as we can in the hands of parents to help them navigate the complexities of filters. Of course, if the Government adopted the committee’s recommendation that there should be minimum standards for filtering, we would make parents’ lives much easier. I look forward to discussing this further with the Minister in one of his round tables on the Green Paper and I very much hope that noble Lords will support Amendment 33ZLA. It is a vital step towards greater industry transparency with respect to child protection online.