Mr Tim Loughton (East Worthing & Shoreham, Conservative)

Welcome back to the Committee, Mr. Amess. Parts of the clause are pertinent to electronic communications and people involved in the internet industry. Such matters have been debated at length both in the House and in another place, but several issues have not been properly dealt with, hence our amendment. For precautionary purposes, I shall declare what is not a particular interest. I was a non-executive director of an internet web posting company, which was taken over by another American company in whose equity I am an increasingly modest holder—given what has happened to its shares. That experience has given me some knowledge of the problems that may be faced by such companies should the Bill be enacted in its present form.

Subsection (3) is a catch-all provision. It takes in almost every conceivable person who may have contributed towards the distribution of a tobacco advertisement in electronic form. I am talking not only about an internet service provider or a web posting company, but those businesses that may have been involved in distribution, or had provided the means of transmission, the hardware, the software, the telephone lines or the computer equipment. The amendment would remove ''participating in doing so'' from the provision. Under the Bill, those who are connected with the business, some of whom I have listed and who have no knowledge about—or make a contribution to—the distribution, dissemination or promotion of tobacco advertisements could be deemed culpable, because they had been involved in the equipment that facilitates the dissemination of information.

The amendment would still make it illegal to distribute tobacco advertisements in the form set out under the Bill, but it would limit the offence to those persons who were instrumental in that distribution. Surely it is not right that persons who could not possibly remove offending tobacco adverts that were distributed by electronic means are at risk of committing an offence. When I was involved with an internet company, we hosted websites for small

businesses and had a filter mechanism for clients, especially those who wanted to advertise products of a slightly lurid nature or fairly salacious photographs. We activated that filter by our code of conduct. However, that is increasingly difficult when those with websites can update them directly without having to go through the website provider, as indeed many Members do, including me.

Of course, it is difficult for the website host constantly to check for offending material. Given that there are millions of pages of internet websites to be examined, that is an almost impossible task. That is difficult enough for those directly involved in the internet industry whose business it is to host websites, but it would be impossible and irrational to expect those loosely involved with transmission lines, and other equipment involved in making available or hosting such material, to have any liability for material that falls foul of censorship laws, or, in this instance, prohibitions on tobacco advertising. That is why we would like to make it clear that only those directly involved in the transmission and communication of such prohibited adverts should be deemed in any way culpable under the Bill.

I would be grateful if the Minister were to elaborate on compliance with the e-commerce directive, which was to have been implemented by all European Union member states by 17 January, although it has not been. I am sure that she has had discussions and has taken advice on the subject. We treat internet service providers rather differently from other EU states. Under the directive, as is the norm in other EU states, ISPs are treated not as publishers or distributors but conduits for the transmission and immediate or temporary storage of information.

A conduit is different from a publisher. The Bill could be interpreted as treating ISPs as publishers, rather than as conduits providing the mechanism or framework for people to communicate their message, advert and wares for sales, for example. If ISPs are to be treated as publishers, there will be many implications outside the Bill for the liabilities of ISPs and others involved in putting together, hosting or transmitting websites on the internet. The Bill may be incompatible with EU law. It is also worth noting that in the United States, internet service providers have immunity for material to which they provide access.

Perhaps the Minister can allay our fears and guarantee strongly and convincingly that the sort of people who I have listed will not be included under what appears to be a catch-all phrase. As an adjunct to the amendment, we have tabled amendment No. 19, which would add the word ''knowingly'' to subsection (3). The Bill would then catch out only those actively participating in distributing, communicating or publishing prohibited tobacco adverts. Anyone who could be said, with any reasonableness—we will consider that idea under other clauses—to have done so unwittingly should not be caught out by the provision.

We are trying to make it clear that those likely to fall foul of the Bill are those who can reasonably be expected to be involved in controlling the material, rather than those who are completely subsidiary to

that process, and rather than providers such as telecom companies.

See this speech in context