Digital Economy Bill

Lord Browne of Belmont Excerpts

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

[The Earl of Erroll (CB)]

My Lords, I have one amendment in this group. I very much support Amendment 65, but there is no point adding anything to what the noble Lord, Lord Morrow, said. He covered it in great detail and for all the right reasons. I will add only for the noble Lord, Lord Paddick, that a lot of the payment service providers—this is the key to it—such as Mastercard, Visa, and so on, are international. If there is a duty on them, they are very good at trying to stick to the law. That would close quite a few holes and make life a bit difficult for sites—so as a deterrent, it would really help.

Sadly, this whole approach to cutting off the ancillary service providers years ago was enough to kill off pirate radio in the 1960s—which I was very sad about. But this time I approve of being able to do it, because I approve of the motive behind it: trying to stop children accessing pornography.

Amendment 68B, in my name, questions what a “large number” of children is. I realise that it is obvious that you have to prioritise, because 80% of the sites are over a certain size and they will definitely come under this. They handle 80% or so of the traffic, or whatever, so I can see that you should check up on them first. But they are also the ones that will comply, because many of them are onside anyway. However, let us say that there are 10% of sites left. That is an awful lot of children, if you do the maths in your head. You knock one nought off the end of however many children there are, but you still leave an awful lot. I therefore do not understand why we are leaving in a “large number” as a constant target. There must come a point when it is worth moving on to the smaller numbers as well. I therefore do not understand the purpose of the clause. It is self-evident that they will have to prioritise. If they do not, they are idiots—and I know perfectly well that the members of the BBFC are not. Therefore I cannot understand the purpose of it.

Amendment 69A, in the name of the noble Lord, Lord Paddick, has some merit in it. As the noble Baroness, Lady Benjamin, said, there is a lot of non-commercial stuff out there. The purpose of this is to stop children viewing pornography. It does not matter whether it is commercial or not. If you put in something like this, there are clever ways in which people will try to define their sites as non-commercial. In particular, if they can start appealing against this—this is where having a complicated appeals process would become so dangerous—I can see loopholes opening up. So we need to start including non-commercial pornography—and it is okay if it takes a year.

I also support Amendment 237, in the name of the noble Baroness, Lady Benjamin. We need to have a deadline. It is something that all sites can work towards. We should say that, on whatever date, if sites are not compliant—we suggest that it ought to be a bit like a speed limit, where you ought to slow down before you hit the 30 miles per hour limit—we will issue notices to the ISPs to block them. Something might happen, because you have a level playing field, everything happens on the same date, and under the amendment in the name of the noble Baroness, Lady Benjamin, they will have a year to do it in. That is probably enough to get your regulations in place and so on. It is a very good idea.

[Lord Browne of Belmont (DUP)]

My Lords, I am pleased to be able to support Part 3 of the Bill, and Amendments 58 and 65, in their objective of increasing child safety. However, I am concerned that the Government’s proposal in Clause 22 currently leaves many questions unanswered. I am raising these points in the context of the Government stating in the impact assessment for the Bill, published last May, that the regulatory system to be set up under Clause 22 would merely,

“nudge porn providers to comply and put age verification in place”.

That is not consistent with the much bolder manifesto commitment simply to,

“stop children’s exposure to harmful sexualised content online by requiring age verification for access to all sites containing pornographic material”.

Since then the Government have set out a robust position on IP blocking, which leaves websites little room for doubt as to what might happen if they do not comply with Part 3. The enforcement action is clear: the age verification regulator can issue a notice and internet service providers have a duty to respond. In this regard, and alluding back to the previous debate, I think it is vital that Clause 23 should remain as it is—unamended.

However, there has been no upgrading of Clause 22 in parallel with the introduction of Clause 23, so we are left with the notion of “nudging” websites—which gives me little reassurance that this is a robust approach to enforcement. Under Clause 22(1) the age verification regulator may give a notice to a payment provider or an ancillary service provider, but it is not clear when or if the regulator would inform the service provider that such a contravention was happening. Would it be after a fine was not paid or after a letter had been sent—and, if so, how long would a website have to respond before a notice would be given? I hope that the Minister will set out the Government’s intentions.

I support Amendment 58, tabled in the names of the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe. It would require the regulator to issue a notice under Clause 22(1). The noble Baroness deserves much credit for her persistence in bringing this issue before your Lordships’ House over many years. My bigger concern is that, having set out clearly that internet service providers must act in response to a notice from the regulator, there is no transparent statutory expectation on payment providers or ancillary service providers. How do the Government expect enforcement to take place without this power? Others have set out their case on this point in detail and I will not take up the time of the Committee by repeating it, but I am left feeling concerned that there is no power to require service providers to take any action after receiving a notice from the regulator. Furthermore, such a lack of teeth undermines the Government’s manifesto commitment to prevent children accessing all pornographic websites.

I fully support Amendment 65 in the group, which would make it a duty for payment providers and ancillary service providers to act by removing their services from contravening websites, and makes that duty enforceable. I hope that the Government will agree.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I rise to support in particular the inclusion of Amendment 65 on the requirement for payment services providers to cease providing a service to those who flout the age verification rules, and I am pleased to say that it looks like we are building slightly more of a consensus on that than we did on the previous group of amendments. It seems to us that this is the most powerful measure that can be taken against rogue pornographic sites. If we can cut off their source of income, the likelihood of a positive response is almost inevitable.

The very nature of commercial pornography is based on the vast sums of money that can be made from it. Indeed, when we debated Part 3 at Second Reading, several noble Lords made the point that legitimate pornography sites would welcome the age verification process as they do not make any money from children casually visiting their sites; they want the more serious players to be involved because obviously they are the ones who are going to pay the money, so there is a kind of internal logic to what is being proposed. For these sites, the overriding concern is to harvest the profits, and any threat to that is likely to bring about an immediate response.

However, I also accept the point that we have to get the enforcement right, and I listened carefully to the noble Baroness, Lady Howe, about the experience with regard to the Gambling Bill, some of which I did not know. If there is a problem, let us talk it through and work it out because somewhere in the mix is the answer to our problems.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, briefly, I strongly support what the noble Baroness, Lady Jones, said. That is why these Benches support the amendments. I took quite a look of comfort from what the Minister said early on in today’s proceedings. As the noble Baroness, Lady Jones, said, there are considerable concerns about the width of “prohibited material” and the very existence of that particular set of conditions inserted at a fairly late stage in the Commons.

Of course, we have talked about the site-blocking provisions but the prohibited material aspects really confuse the issue as they deal with access by adults. It was very useful having the meeting with the Minister and his colleague, Matt Hancock, to talk about these issues. Having discussed the matter, we felt that the proposed new definition of prohibited material, limited to the 2008 Act, was acceptable as that is very tightly defined. Again, I entirely agree with the noble Baroness that it was very disappointing that immediately after that meeting the wording as in this amendment was not made available or put down for the Committee. That would have been enormously helpful in settling people’s concerns about the width of the definition of prohibited material, which goes well beyond the harm test used by the BBFC under the Video Recordings Act.

That is really the essence of it—tying it back. I hope the Minister will shortly explain this in greater detail than he did at the beginning of this session to allay our many fears about something fairly extraneous being introduced into the Bill. I stood corrected earlier by the noble Lord, Lord Maxton, about the exact purpose of Part 3, which is to prevent access by children to online pornography. We must be very clear that that is what we are about, rather than trying to censor the internet on a broader basis.

[Lord Browne of Belmont]

My Lords, on Second Reading, a number of noble Lords raised concerns about censorship and the definition of prohibited material. I found this surprising as we have so often heard the mantra that what is illegal offline is illegal online. Offline, the British Board of Film Classification has operated for a long time on the basis that it will not classify certain types of video work based on the content. This principle is well established and has been in statute since an amendment to the Video Recordings Act 1984 was made in 1994 after the Jamie Bulger murder. That requires the BBFC to have special regard to any harm to potential viewers. A “potential viewer” means,

“any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued”.

Moreover, it is of course an offence under Section 9 of the Video Recordings Act to supply a video work which the BBFC decided is not suitable for classification. It is also an offence under Schedule 10 to have such a work in possession for the purpose of distribution and supply.

Digital Economy Bill

Lord Browne of Belmont Excerpts

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

[Lord Elton (Con)]

My Lords, I cannot support the noble Earl. I follow most of his argument, but when we are considering legislation in one area we have to take into account its effect in other areas. What we have here is a proposal to narrow a definition of maximum control and to place anything that is not within that narrow definition in an area of less control where a larger population is affected by it.

I do not apologise for coming to this very late because Her Majesty’s Government are doing the same. In 1985 I was in the unfortunate position of taking through this House the Bill to abolish the GLC. After it had gone through the Commons and just before the Report stage here, the then Leader of the House, Willie Whitelaw, said, “My friends down the Corridor want me to abolish the Inner London Education Authority as well”. Noble Lords can see what political dynamite that was. To bring forward proposals at the second stage in the second House without wide consultation with those concerned seems to me pretty late in the day, so we are right to look at this closely.

I view it in a simple way. Powerful arguments have been put by the noble and learned Baroness and others in favour of her amendment, which I warmly support. The central issue is a simple one. If you take the least harmful of a bunch of very harmful material out of control, you may make the control of the remainder more effective but you also release more harmful material to less strict control. That must be wrong. Other noble Lords have spoken much more academically and legalistically than I am able to do. I merely wish to say that I have listened with my heart and my head and I stand entirely behind the noble and learned Baroness’s amendment.

[Lord Browne of Belmont (DUP)]

My Lords, I support Amendment 25YD. In Committee I set out in detail all the reasons why I thought that the Government should not do what they have done in this series of amendments. They will remove “prohibited material” and replace it with “extreme pornographic material” and put the remainder of the prohibited material category behind age verification. I concluded my speech by saying:

“The Bill takes significant strides in the cause of child protection. It would be a shame if we in this House took steps to undermine this”.—[Official Report, 2/2/17; col. 1359.]


I start my speech today with the same sentiment and by quoting the Minister whose comments at Second Reading agreed with the sentiment that I set out in Committee:

“It is a complicated area. Free speech is vital but we must protect children from harm online as well as offline. We must do more to ensure that children cannot easily access sexual content which will distress them or harm their development, as has been mentioned. We do not allow children to buy pornographic material offline, and this material would not be classified for hard-copy distribution. The BBFC has a well-understood harm test and would not classify material that, for example, depicts non-consensual violent abuse against women, and it may not classify material which is in breach of the Obscene Publications Act, as clarified in guidance by the CPS. Prohibited material has always been within the regulatory framework of this Bill. We consider that having a lesser regime for prohibited material than lawful material would be unsustainable and undermine the age-verification regime”.—[Official Report, 13/12/16; cols. 1228-29.]


I want to repeat that final sentence:

“We consider that having a lesser regime for prohibited material than lawful material would be unsustainable and undermine the age-verification regime”.


The general public agree with that principle. ComRes polling from last weekend and published today shows that 82% of the public think that the online standards for regulating internet pornography should either be the same as those for offline or be stronger. Yet contrary to public opinion, the Government have turned on their head and performed a major U-turn on the basis of mumblings about the Obscene Publications Act.

First, the Government are trying to convince us with an amendment to Clause 27, government Amendment 25YV, that this situation will be sustainable. Just last week the noble Baroness, Lady Shields, said in answer to a question from the noble Lord, Lord Elton:

“I should say to my noble friend that we are clear that what is illegal offline is also illegal online. Legislation is in place to deal with internet trolls, cyberstalking, harassment, revenge porn and the perpetrators of grossly offensive, obscene or menacing behaviour”.—[Official Report, 15/3/17; col. 1861.]


But she did not add, “From next week, when we pass amendments on Report, not for pornography”. We are bringing in different rules about what can be supplied online and offline. If you are a retailer of DVDs you cannot sell an unclassified work. If you are a UK-based video-on-demand service you cannot have a programme service that includes prohibitive material. But if you are a website you can supply all of this material to the UK as long as it is behind age verification, unless it is extreme pornographic material. I cannot see how this position can be sustainable. Therefore, in the longer term we are changing the rules about how we approve or supply this material. I argued in Committee that such sweeping changes to long-standing arrangements should be made only with a full and public consultation. We have not had that. It has been slipped in at the end of the Bill’s parliamentary scrutiny.