Digital Economy Bill

Lord Gordon of Strathblane Excerpts

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

I do not support the Government’s extreme pornography proposals and will certainly vote against them if there is a Division. In the unfortunate event that they pass, I will support the very important backstop amendment moved by the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name. It proposes a reasonable and measured approach to the changes the Government have made at a very late stage of the Bill. The amendment requires a review of how the amended clauses that I listed at the start of my speech are working and the impact of the use of the extreme pornography category after two years, with the option of restoring the current enforcement standards, which Amendment 25W would remove, after three years. This at least gives us time for further consideration, and I hope that the House will warmly support that opportunity.

[Lord Gordon of Strathblane (Lab)]

My Lords, I make the same point I made in Committee, which is that offline and online should be aligned. I am relatively agnostic as to exactly where the line is drawn, but it should be consistent across offline and online. Otherwise, I invite the Minister to confirm that under the government amendments, material it is prohibited to see offline, in that it is refused any form of certification by the BBFC, will now be available online. If the answer is that it will not, I cannot see why the Government do not maintain the original position in the Bill. If, on the other hand, it will be available online, does the Minister recognise that—unfortunately and, I fully recognise, unintentionally—the Government may subvert the efficacy of the offline legislation? The internet is recognised not merely as a method of disseminating information. People frequently do not buy music in the form of CDs; they download it. They do not buy videos; they download them. If we do not do something about this, we will unintentionally subvert the offline legislation.

[Lord McColl of Dulwich (Con)]

My Lords, I rise to support Amendment 25YD. I find myself very surprised by Amendments 25H, 25W and 25YC. I appreciate that in some technical sense these amendments may not jeopardise the principle that what is illegal offline is also illegal online, but as a matter of practice and enforcement, they most certainly do jeopardise the spirit of the principle.

The Bill is very clear that the age verification regulator must enforce the law with respect to illegal pornography to the same standard that exists offline. These amendments, however, deliberately change this and thereby, albeit without perhaps making significant amounts of illegal pornography legal, certainly ask us to support the proposition that our law should instruct the regulator to make space for all but the most violent, illegal pornography. What kind of message are we sending to society? If we vote for these amendments today we will be giving the wrong message. We cannot go to the length of using valuable parliamentary time to change the Bill as it stands through these amendments, which as a matter of practice make space for violent pornography, without sending a message that violence against women is in at least some sense acceptable.

The definition of extreme pornography and material is an inadequate replacement for the prohibited material category which the amendments seek to remove. It will cover only the explicit and realistic portrayal of violence which is life-threatening or likely to result in serious injury to just a few specific parts of the body—breast, anus and genitals. This leaves a range of violent acts and behaviour which we would be saying, courtesy of amendment to Clause 16, is acceptable to be portrayed in online pornography but which would not be granted an R18 certificate, or indeed any other certificate by the British Board of Film Classification for distribution in other ways.

The British Board of Film Classification guidelines state that material to which it refuses to give a certificate includes depictions of the infliction of pain or acts that may cause lasting physical harm; sexual threats, humiliation or abuse; and material, including dialogue, likely to encourage an interest in sexually abusive activity which may include adults role playing as non-adults. I believe that if such material is to be included in the new standard for the acceptable level of violence and abuse in pornography online, we are setting the standards in the wrong place. It puts a sheen of acceptability on materials portraying violent and abusive actions and, in doing so, communicates to the viewer that such attitudes and behaviour towards women are permissible.

In the light of what is already known about the overlap between the use of violent pornography and the development of attitudes which condone violence against women, and sexual aggression, this is deeply concerning. The government Amendment 25H to the definition of pornographic material, and what material can be blocked by the regulator, also places question marks over the standards applied to other formats, by which I mean DVDs and video-on-demand services. I recognise that the internet is a vast place, but simply because there might be different values reflected in different corners of the web, should we capitulate and reduce our standards? I would say not.

The Government have tried to protect the application of different standards set out in other legislation with Amendment 25YU to Clause 27. While the actual legislation may not be changing today for DVDs and video on demand, the pressure to adjust how that legislation will be enforced will be hard to resist. Furthermore, Amendment 25YV implicitly recognises that there are different standards applying in other formats that will no longer apply to the internet, breaking the premise that what is illegal offline is illegal online. This not only disproportionate but extremely risky.

I understand that there are concerns about the original definition of prohibited material, which is being removed by Amendment 25W because of out-of-date CPS guidance, but surely that is a temporary state that will in time be remedied. Making a permanent change to the definition of what pornography is acceptable to supply behind age verification goes beyond addressing the issues on which the CPS guidance needs updating. On touching on the CPS point, I must engage with the argument made by some that the Government are compelled to make these changes because the CPS guidance on the Obscene Publications Act is out of date. As the noble and learned Lord, Lord Mackay, has pointed out, that argument is absurd. If the CPS guidance is out of date, it should update it; it is ridiculous to argue that Parliament, which is sovereign, should have its freedom to do the right thing fettered by the fact that CPS guidance has been allowed to get out of date.

Anyone voting for Amendments 25H, 25W and 25YC will be voting to make space for violent pornography online which the Bill as currently defined does not do. If there is a Division, I shall be duty bound to vote against, because I could not possibly associate myself with an attempt to make violent pornography more available than this Bill currently suggests that it should be, respecting as it does the offline enforcement standards. A vote for these amendments must inevitably have the effect of conferring some level of approval and some measure of normalisation of violence against women. If there is a Division, I shall vote against.

In the unfortunate event of the amendments passing, I shall vote for the excellent Amendment 25YD proposed by the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name. The amendment allows for the definitions of extreme pornography to revert to the current definition of prohibited material in three years’ time, subject to a review in two years. It future-proofs the Bill and provides a means of dealing with this problem without needing to bring forward new legislation and take up valuable amounts of parliamentary time. The three years will provide ample time for the CPS to update the guidance that it should never have allowed to get out of date and provide time for proper public debate.

The internet is a wonderful invention in many ways, but it can be used for ill. Standards on harmful material and pornography have been honed and developed in relation to videos and DVDs in the offline world over many years. It would be ill advised permanently to establish a separate and lower set of standards for the internet. Amendment 25YD will allow the Government’s amendments to address out-of-date guidance but restore consistency in the approach to pornography across all media after an appropriate time. I commend it to the House.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, the debate this afternoon shows the importance of noble Lords participating in every stage of the Bill. My understanding of what has happened here is that the Bill was never intended by the Government to deal with protecting adults from pornography; it was to fulfil a manifesto commitment to protect children from accessing pornography. At a very late stage in the other place, a Conservative Back-Bencher brought protection against adult pornography into the Bill. The mess that we are currently in is completely down to the Government accepting that amendment.

The current law does not allow anybody to take down either prohibited material or extreme pornography from the internet with the exception of child pornography, which is dealt with separately through the Internet Watch Foundation and so forth. The Government’s problem, having accepted that amendment in the other place to do with prohibited material, is that people are losing confidence in such a definition of pornography. While prohibited material is not allowed in films and DVDs classified by the BBFC, that material is not prosecuted as obscene by the Crown Prosecution Service. The law on what is and is not obscene—on what it is lawful to have and not lawful to see and possess—is in a mess. That is why we are in this situation.

The Government have tried to remedy the situation by picking on something that is not disputed: a definition of obscenity that is a concrete foundation on which to build for the future. They have therefore decided to replace this definition of prohibited material that is falling into disrepute—

[Lord Gordon of Strathblane]

Can the noble Lord produce a shred of evidence to say that this definition has fallen into disrepute? I see no evidence of it in the yearly polling done by the BBFC on its classifications.

[Lord Paddick]

I will try to say it again more clearly. It is the fact that the Crown Prosecution Service is not prosecuting people for possessing prohibited material. That brings the definition of prohibited material into disrepute, as far as the law is concerned. I am not quite sure what it is that the noble Lord does not understand about it being brought into disrepute in that respect.