Digital Economy Bill

Lord Borwick Excerpts

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

[Lord Borwick (Con)]

My Lords, first, I declare an interest as a trustee of long standing of the Ewing Foundation for deaf children, a charity that helps deaf children to make the most of the technology that can help them in schools.

I sympathise with my noble friend the Minister in having to deal with the complex interface between legislation and technology, especially as technology is changing so fast. For example, a lot of attention will focus on Part 3 of the Bill, on the subject of online pornography, but I feel that noble Lords who, like me, depend on teenage children or grandchildren to set up a new television will fail if they believe that they can write legislation that makes it impossible for teenagers to access whatever they want online. Certainly, Part 3 will go some way to making it more difficult for tech-savvy teenagers to access such material, and that is to be applauded, but I do not doubt that many noble Lords will propose amendments to attempt to make such access impossible, rather than just difficult. Such amendments may only reduce the already low level of respect teenagers have for the law in general. Surely the answer is education, as many noble Lords have said, rather than technical prohibitions.

The Bill deals with sectors with rapidly changing technology. That means it will soon be out of date, so there is, in this case, a good argument for regularly reviewing not only its effects—such as the possible increase in credit card fraud as a result of Part 3—and the number of dwellings with superfast internet access, but the creation of new technologies that will make existing technologies obsolete.

I will be attending the Consumer Electronics Show in Las Vegas between 4 and 7 January 2017. It is said to be the largest exhibition of any kind in the world, and I should pay tribute to the far-sighted and high-tech usual channels for making sure that the House of Lords will not be sitting between those dates. I have no doubt that I will see more advanced methods of accessing the internet than copper wires or even fibre optics. I have read reports about, and heard lectures on, low-flying satellites and high-flying balloons—known, bizarrely, as Project Loon—that will continuously transmit wi-fi-type signals to eliminate not-spots. That would enable the isolated shepherd’s hut in the highlands of Scotland to get better coverage than we do in central London, and certainly better signals than we get in the Palace of Westminster. If such technology exists, is it right that the broadband universal service obligation should continue indefinitely? Certainly this obligation is needed now in the short term, but we have to write legislation that will last.

The lives of all of us have been changed by new forms of communication. I have no doubt that noble Lords of 50 years ago would have been incredulous at the communication that comes to today’s noble Lords by texts and emails. But much more important are the changes to communication that technology has brought for those with sensory disabilities, enabling their greater connection with the outside world.

Part of the change has raised the importance of literacy in the lives of deaf people. Text phones and email have radically improved the opportunities for communication. Indeed, the use of technology masks many a disability and can offer independence and equality. Noble Lords will know that deaf children use a lot of equipment based on the 2.40 to 2.48 gigahertz frequency. Many deaf people are concerned that the tests being undertaken by Ofcom before it sells the adjacent frequency—mentioned by the noble Lord, Lord Fox—will be insufficient. These frequencies are vital for connecting deaf people to society generally.

A simple acceleration of this process of connectivity could come from the subject raised in another place—regulating to ensure that all television programmes carry subtitles. In 2003, I gather, Parliament gave people with hearing loss equal access through subtitling on analogue TV. However, how we watch TV has changed. There is no legislation to provide subtitles for catch-up, video on demand and streaming, so the legislation lags far behind the technology at the moment.

TV remains one of our strongest cultural focal points, and frustration and social isolation can occur when people are excluded from programmes that their friends, families and colleagues all enjoy. Most broadcast programmes do carry subtitles, but the way we watch television nowadays, with catch-up TV and minority channels, makes it desirable that this is more widespread. It is necessary to consider how to ensure greater access. I am grateful for the help of the National Deaf Children’s Society and Action on Hearing Loss, which briefed me on this subject. Will the Minister agree to meet me and his Bill team to discuss the commitment that an amendment will be brought into this House to achieve this?

Many people who use subtitles on TV programmes are not diagnosed as deaf—not least those whose problem may be one of processing language, rather than hearing sounds, as well as those confounded by sound itself. Even those watching the post-match analysis on a TV in a noisy bar or around a family TV may use subtitles to accompany the pictures. So a wider use of subtitles will help ease the very serious problem of isolation that often accompanies any form of disability.

Of course, much more can be done to alleviate that feeling of isolation. As well as extended use of subtitles and much better internet connections from sources we have not yet heard of, things like autonomous vehicles will connect those with disabilities with the rest of the world like never before. The common theme here is technology. So I hope that, as the Bill is debated, we will be mindful that we should facilitate technological progress, rather than slow it down.

Digital Economy Bill

Lord Borwick Excerpts

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

Moved by

[Lord Borwick]

225: After Clause 79, insert the following new Clause—
“On-demand programme services: accessibility for people with disabilities
(1) The Communications Act 2003 is amended as follows.(2) After section 368BB insert—“Accessibility368BC Accessibility for people with disabilities(1) The Secretary of State may by regulations impose requirements on providers of on-demand programme services for the purpose of ensuring that their services are accessible to people with disabilities affecting their sight or hearing or both.(2) The requirements that may be imposed include—(a) requirements for programmes included in the services to be accompanied by subtitling;(b) requirements for such programmes to be accompanied by audio-description for the blind;(c) requirements for such programmes to be presented in, or translated into, sign language.(3) Before making regulations under this section, the Secretary of State must consult— (a) the appropriate regulatory authority, and(b) (where they are not the appropriate regulatory authority) OFCOM.368BD Enforcement of regulations under section 368BC(1) Where the appropriate regulatory authority determines that a provider of an on-demand programme service is contravening or has contravened regulations under section 368BC, they may do one or both of the following—(a) give the provider an enforcement notification under this section;(b) impose a penalty on the provider in accordance with section 368J.(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of the regulations is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes a requirement on the provider to take all such steps for complying with the regulations and for remedying the consequences of the contravention of the regulations as may be specified in the notification.(4) An enforcement notification must—(a) include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and(b) fix a reasonable period for taking the steps required by the notification.(5) It is the duty of a provider to whom an enforcement notification is given to comply with it.(6) That duty is enforceable in civil proceedings by the appropriate regulatory authority—(a) for an injunction,(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or(c) for any other appropriate remedy or relief.(7) If a provider to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification the appropriate regulatory authority may impose a financial penalty on the provider in accordance with section 368J.”(3) In section 368C (duties of the appropriate regulatory authority), omit subsection (2).(4) After that section insert—“368CA Code on accessibility for people with disabilities(1) It is the duty of the appropriate regulatory authority to draw up, and from time to time review and revise, a code giving guidance as to—(a) the steps to be taken by providers of on-demand programme services so as to meet the requirements of regulations under section 368BC, and(b) other steps to be taken by providers who are subject to requirements under the regulations to ensure that their services are made progressively more accessible to people with disabilities affecting their sight or hearing or both.(2) The appropriate regulatory authority must publish the code drawn up under this section, and every revision of it, in such manner as, having regard to the need to make the code or revision accessible to—(a) persons who are deaf or hard of hearing,(b) persons who are blind or partially sighted, and (c) persons with a dual sensory impairment,they consider appropriate.”(5) In section 368J(1)(financial penalties), after “368BB” insert “, 368BD”.(6) In section 368K(1)(suspension or restriction of service for contraventions)—(a) in paragraph (a), after “368D” insert “, or of regulations under section 368BC”,(b) in paragraph (b)—(i) after “368D” insert “or the regulations”, and(ii) for “or 368I” substitute “, 368I or 368BC”.(7) In section 368O(2)(a)(power to demand information), after “368D” insert “, or of regulations under section 368CA,”.”

[Lord Borwick (Con)]

My Lords, I declare my interests in the register, and as a trustee for more than 20 years of the Ewing Foundation for deaf children. It is a great charity which works in schools to help deaf children make the most of their education; partly by helping the teachers to ensure that their hearing aids and cochlear implants are working well and by giving teachers advice on how to get the most out of the equipment and how to help the children.

Many trends are apparent in the field of deafness, not least the rapid rise of cochlear implants, the rise in literacy rates in children and, of course, the rise in late-onset deafness as the population generally ages. The vast majority of deaf people speak and read perfectly, as most are elderly people who learned their language and how to read as children. I thank Action on Hearing Loss and the Bill team in the Department for Culture, Media and Sport for their help in drafting this amendment and their support in its passage. They have helped to clarify my thinking on this important issue.

This is an enabling amendment, permitting the Secretary of State to bring forward statutory instruments to require those who transmit television programmes to provide subtitles, then audio description for viewers with poor eyesight and, lastly, British Sign Language interpretation for people who find that easier. I am told that all terrestrial television programmes now carry subtitles and a growing number of pay-to-view programmes are already having subtitles added. Sky has told me that about 60% of its entire output will carry subtitles by September this year; it should be applauded for voluntarily doing the right thing. Thank you. However, the advance of audio description and sign language does not seem so good. The latter two aids to understanding are far more expensive than subtitling and it is possible that technological advances will play a part in solving the problem of deaf people who can communicate only with other sign language users.

Already, in America, I have seen demonstrations of software that will enable simultaneous translation from American Sign Language to text. If that is available, translation from text to British Sign Language on an iPhone will not be far behind. When the statutory instruments come through, we must bear in mind the speed of technological change and not be too prescriptive in the manner in which subtitles are delivered. We should instead seek a statutory instrument that merely says that subtitles should be available on all programmes. A swift statutory instrument will serve as encouragement to the broadcasters to continue and expand their good work. If we are in a position where the broadcasters and the Government are competing with one another to seek the broadest and quickest implementation of subtitles across channels and services, I would say that that is great.

We should remember that TV companies are simply responding to demand. It is not just the hard of hearing: think of TVs in noisy venues, football fans who want to read the half-time match analysis over the din in the pub, or people watching television in a noisy gym. All will appreciate this change. This sort of measure will also help to solve the biggest problem of sensory deprivation: that of isolation. If subtitles enable a deaf person to be on an equal footing with those in the hearing world, then we and the Government will have done one more thing to put disabled people in a position to thrive in society. I beg to move.

[Lord Clement-Jones]

My Lords, I think that many of us responding to the amendment in the name of the noble Lord, Lord Borwick, find ourselves in something of a cleft stick. He has introduced the subject matter superbly, and in principle the amendment is entirely correct. The noble Lord has a very good track record on physical access for the disabled and this is a continuation of that, in a sense, in a different sphere. He also has the courage to wear a House of Lords tie, so he cannot be all bad. The trouble is that this amendment does have flaws. I am sure that the noble Lord, Lord Grantchester, if he speaks on this, will pick up on them. The Delegated Powers and Regulatory Reform Committee has commented on this.

All of us want the amendment to succeed but it does need a further look. We have all had briefings from the public service broadcasters and the platforms, including Sky, who say that they can live with this in principle but are rather concerned about the fact that there is no parliamentary approval built in. There are a number of flaws; they recommend that the affirmative procedure should be applied to the first regulations; they recommend that the appropriate regulatory authority is specified; and they recommend that the Secretary of State should have a duty, before making the regulations, to consult on-demand service providers and other stakeholders—which, of course, would be the platforms. So I am very much in sympathy in spirit, but I hope that we will have a chance before Report to perfect the amendment so that the campaign of the noble Lord, Lord Borwick, will proceed as intended in due course.

Digital Economy Bill

Lord Borwick Excerpts

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

[Lord Clement-Jones (LD)]

My Lords, I apologise on behalf of the noble Lord, Lord Gordon of Strathblane, and my noble friend Lord Foster of Bath. Neither noble Lord can make today’s proceedings, so I have been asked, as their inadequate first reserve, to move this amendment and to speak to the other amendments in this group.

The Minister will no doubt remember that in Committee the noble Lord, Lord Gordon, and I raised certain issues surrounding the amendment moved by the noble Lord, Lord Borwick, which is now incorporated in the Bill as Clause 85. We supported it, and that broadly is the position of the broadcasters. However, they have certain issues surrounding the wording of the clause. I am delighted to see that the Government have taken on board the Delegated Powers and Regulatory Reform Committee’s points and that the government amendments incorporate a number of changes to the clause to reflect what the DPRRC had to say.

The broadcasters wish certain other aspects to be aired today. It is a question of the difference between delivering access services on on-demand services and delivering them on linear. Virtually all programmes are now subtitled on the main linear channels. Our public service broadcasters more than exceed the targets set for access services by Ofcom. Linear broadcasting is a mature market with standardised technologies, and it is relatively straightforward and economic to provide access services, but there is a big contrast with delivering services on demand. On-demand is much more challenging and fragmented, and there is a huge array of different online platforms. Each platform has its own technological underpinning, and there is no common standard for delivering access services. Accordingly, if this clause is interpreted too broadly there is a danger that a one-size-fits-all approach which takes no account of the revenue, size, usage or length of establishment of a service or online platform would result in fewer online services for everyone because of the disproportionate cost of requiring access services to be rolled out across every platform, regardless of how practical or economic that is.

With the current wording, it is possible for the Government to put in place somewhat disproportionate and onerous regulations that could inhibit the development of services for everyone. The broadcasters are calling for an amendment to the wording to reflect the need for proportionate and progressive measures that take account of factors such as revenue, size, usage and length of establishment in setting obligations on content services or online platforms. I hope that the Minister will agree, whether at this stage or at a subsequent stage, to review the wording so that a degree of proportionality is introduced into this clause. I beg to move.

[Lord Borwick (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for his comments on the amendment I moved in Committee. The trouble with his amendment is in the meaning of “proportionate”. There will be quite a lot of consultation between all the parties about what will be required before the regulations are finally drafted, and adding “proportionate” would effectively add an extra layer of consultation in which people argue with each other about exactly what “proportionate” means in these circumstances. It would be much better if the clause was left as it is to make certain that, whatever the rules are, they are clear, having been discussed in the consultation. I must express my thanks to the originator of this clause as it came from a Labour Party proposal in another place, but we all support the right idea here, and I am sure it will help deaf people and blind people understand what is on television. This amendment, although no doubt worthy, is not necessary and will in practice get in the way of getting this change into law.

[Lord Wood of Anfield]

My Lords, I shall focus briefly on the principles shared by the amendments proposed by noble Lords and those suggested by the Government. They take a long-standing commitment to ensure accessibility and update the relevant rules for an age in which on-demand services are becoming more essential to viewers. It is an approach we can all endorse, and I am sure the Government will be keen to take these principles forward when it comes to other issues, such as ensuring PSB prominence in on-demand services, which is in the next group.

I turn to another element of this group, which is the Government’s concession on listed events, Amendments 33ZH and 36. This is another example of taking a long-standing commitment to ensuring access and taking steps to update regulations to respond to changing viewing habits. We are delighted that the Government have responded to the concerns we and other noble Lords raised in Committee. Lowering the threshold for qualification for screening listed events below the current standard is crucial if we are to prevent the development of the extraordinary situation forecast by all PSB broadcasters of not one channel qualifying on existing criteria in the listed events regime by the end of this Parliament. Giving the Secretary of State power to respond seems a very sensible move to allow the Government to respond in the light of the evidence in a quick and minimally disruptive way.

Without being churlish, I hope the Government will bear two considerations in mind as they think further about how to develop the new criteria for the existing regime. First, we need to bear in mind that the threshold must be lowered enough to enable channels to continue to qualify, but not so much as to threaten the idea that events that bring the country together should be available to as wide an audience as possible. Secondly, I hope the Government remain open to the idea discussed extensively in Committee that alternative measures of reach and access may be appropriate in an age in which increasing numbers of viewers access programmes online. Having an open mind about regulatory flexibility in this area, as in other areas, is crucial to achieve the purpose of the listed events rules, which are supported by us all.

[Lord Addington (LD)]

I shall be very brief. I thank the Government about listed events. They are important for sporting culture and sharing sport. Taking that on board and making sure that we maintain the link in a manageable way is important, not only because it builds a sense of community but because it is an important link with the casual observer of sport, which helps in encouraging people to take part, mass participation and all those things. It is an important link in that chain, and if we lose it, we will damage part of our sporting culture.

[Lord Borwick]

My Lords, I apologise to the House: I should have declared my interest as a long-standing trustee of the Ewing Foundation for deaf children, which is relevant to my speech earlier.

[Baroness Buscombe]

My Lords, I thank all noble Lords who have taken part in the debate. Government Amendments 33ZD and 33ZF relate to the Delegated Powers and Regulatory Reform Committee recommendations on the accessibility of on-demand programme services for people with disabilities. I once again thank the DPRRC for its recommendations. We have accepted the recommendation that the affirmative resolution procedure should be used instead of the negative procedure for regulations made under the clause, and Amendment 33ZF actions this.

With regard to the second recommendation, we have shared with the DPRRC the rationale for not identifying the appropriate regulatory authority in the Bill. We hope it is reassured by the explanation I have provided that we are following the existing drafting in Part 4A of the Communications Act 2003, which uses the phrase “appropriate regulatory authority”, and defines that as Ofcom unless it has appointed another body as regulator. Ofcom has not currently appointed any such body and accordingly is the regulator of on-demand programme services in the UK. I am happy to clarify that to the House.

On the third recommendation, that the Government consult with on-demand programme services providers and other stakeholders, Amendment 33ZD places a duty on the appropriate regulatory authority—Ofcom—to undertake this consultation and then report to the Secretary of State on the outcome, along with any other matters it thinks the Secretary of State should take into account in drafting the regulations.

At both Second Reading and in Committee we heard concerns from a number of noble Lords that the listed events regime is under threat. I am pleased that noble Lords have welcomed government Amendment 33ZH, which will confer a power on the Secretary of State to amend the qualifying conditions for television programme services to which rights to broadcast listed events are made available. In the UK, the listed events regime operates to protect free-to-view access to the coverage of sports events with a national significance. Sport is a key element in our national identity, part of the glue that binds us together as a society, and we want to ensure that as far as possible everyone across the country is able to watch live broadcasts of the sporting events that matter most to society.

To be clear, the listed events regime is not under any immediate threat. However, modern viewing trends mean that the requirement for a television service to be received by at least 95% of the population may, depending on how this is interpreted in the future, become increasingly hard to meet—the noble Lord, Lord Wood, just alluded to this in his comments. With everyone’s changing viewing habits, this has to remain under review and as flexible as possible. As more people, especially the young—and the noble Lord, Lord Maxton, of course—watch television content on phones and other streaming services, this could put the regime at risk in the future.

We want to safeguard against this and ensure the ongoing viability of the listed events regime. This clause will confer a power on the Secretary of State to ensure that, as media consumption habits change, the Government’s policy objective to ensure that listed events are widely available on free-to-view services continues to be met. The clause confers a power on the Secretary of State to amend the percentage of the population by which a channel must be received in order to qualify. I hope that answers the questions of a number of noble Lords on this. It will enable the Secretary of State to lower the relevant percentage to ensure that there continues to be a list of channels which meet the qualifying conditions. It also provides that any amendment to the percentage does not affect the validity of any existing contract to broadcast a listed event. Any amendment is not intended to invalidate existing agreements to broadcast listed events, which can last for a number of years. There is no intention at this stage to review or revise the list of events itself.

I thank the noble Lord, Lord Gordon of Strathblane, in his absence, for his amendments on the proportionality of accessibility requirements for on-demand programme services. I am sympathetic to their aims. I also assure noble Lords that the Secretary of State will already be considering the proportionality of the requirements that will be placed on such providers. The consultation that Ofcom is required to complete will provide the opportunity to ascertain the proportionality of the provision of accessible services and then report this back to the Secretary of State, so it can be considered when imposing requirements on providers. Furthermore, the SI will contain a review clause on the burdens on business, which will allow a post-implementation analysis of the burdens imposed, to assess whether they are proportionate.

The Government recognise that a balance must be struck between the interests of on-demand services and the interests of those with disabilities that affect hearing and sight being able to enjoy as much content on demand as possible. Achieving this balance will be at the heart of Ofcom’s consultation. Service providers will be able to set out what they consider proportionate. I thank my noble friend Lord Borwick for his contribution to the effect that we should leave this part of the Bill alone. I also reassure the House that Ofcom has a good deal of experience now in the area of accessibility of services. It already publishes a code of practice for such services on linear channels and has a good record in ensuring requirements are ambitious yet not unduly burdensome.

I hope with that explanation that the noble Lord, Lord Clement-Jones, on behalf of the noble Lord, Lord Gordon, will kindly withdraw his amendment. I will move government Amendments 33ZD, 33ZF and 33ZH when the time comes.