Digital Economy Bill - Committee (4th Day) (Continued)

Part of the debate – in the House of Lords at 9:30 pm on 8th February 2017.

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Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 9:30 pm, 8th February 2017

My Lords, I am obliged to the noble Lord, Lord Stevenson, for expressing this amendment and also to the observations of the noble Lord, Lord Foster of Bath. I would say, with respect to his most recent comments, that the test of a free press is not whether or not they publish a letter. Indeed, the fact that they do not publish your letter is itself an expression of freedom.

Amendment 229ZC would require the Government to report to Parliament about the arrangements that would need to be made should Ofcom assume the responsibilities of an independent regulator of digital publications. I acknowledge the care with which the noble Lord, Lord Stevenson, has drafted this amendment. He was quite candid in saying that his real concern is the regulation of the press, but he was equally candid in indicating that, in order to come within scope for the purposes of this Bill, he was not really concerned with all publications by the press but only digital publications.

I see in his amendment an expression of concern—and, indeed, of frustration—over the lack of progress being made towards a viable avenue for press regulation. I am sure that in a sense that, in part, has prompted this amendment. However, he said himself that it might be slightly premature. With respect, I would concur with that observation. It is perhaps too soon—and people will say in response, “Four years after Leveson, is anything too soon?”—but we have to remember that the press landscape has altered quite dramatically over the last four or five years. That is reflected in the fact that certain matters have gone out for consultation—particularly with regard to Section 40, which is going to be raised in a later amendment—albeit that the consultation process has been somewhat stymied by an application for judicial review.

I move on to the core of the present amendment, which is the idea that we should move towards—and this was a backstop of Lord Leveson’s report—Ofcom as a regulator. The idea that Ofcom should regulate digital publications—albeit with “digital publications” not being a defined term, and I make nothing of that—has behind it the real push that Ofcom should become the regulator for the press. As I understand it, that is essentially what lies behind the amendment.

Let us remember that Ofcom already has huge responsibilities as a regulator, many of which we have debated over the last week. Among other things, it has to ensure that we have fast broadband connections, competition decisions, such as the current consideration of the future of Openreach, which has been referred to, and spectrum management, including forthcoming auctions. We have also discussed today its new role in respect of the BBC and its function in managing listed events, and we have heard from my noble friend Lord Borwick in respect of Ofcom’s regulatory functions and in respect of subtitles and the accessibility of on-demand services. There is plenty more, over and above that, that Ofcom does, and that is without even going into the question of postal regulatory functions.

We have the greatest respect for Ofcom as a regulator, but the question arises about how much more we can put on its plate. This amendment seeks to pile on more. For the first time, it would be setting a regulatory requirement on Ofcom, in statute, in relation to internet content, which is not TV-like, if I may use that rather crude term. As my noble friend Lady Buscombe has already made clear, moving to a situation in which Ofcom is a regulator of a broad range of online content would be an enormous undertaking for Ofcom, or indeed for any other regulatory body.

Following the Leveson inquiry, the Government set up a new self-regulatory framework for the press. The self-regulator Impress was granted recognition in October last year. I hear the expressions of concern about how far it has actually managed to attract the press. However, in addition, we also have IPSO. I accept that it has stated that it will not seek recognition, but the majority of large publishers have voluntarily joined the self-regulator. Providers of news-related material in an online format, such as newspaper publishers that have an online product, are already able to join either of these regulatory organisations. We have publications that are in newsprint and online, and it would be unfortunate if we were to divide the regulatory functions according to whether we were dealing with paper or online publications. Both IPSO and Impress have members which publish in both digital form and hard copy. I understand that IPSO in particular is investigating the question of how, going forward, it should regulate online material.

With respect, if the Government wish to explore whether Ofcom would make a suitable independent regulator for digital publications, and report on this to Parliament, they already have the power to do so without legislation. However, we do not believe that Ofcom is the right body to regulate digital publications or publications as a whole. Given that the Government already have the power to consider this approach, we wish not to be put in the position of having to report to Parliament in this way. Indeed, if such a statutory obligation was placed upon us, we would be in the invidious position of having to give serious consideration to making Ofcom the regulator in circumstances where we do not consider that to be appropriate.

That may not meet all the concerns that have been expressed on the matter, and I appreciate in particular the concern that centres on the implementation of Section 40. However, as I said at the outset, it respectfully appears to us that it would be premature to go down this road at this stage. I respectfully invite the noble Lord to withdraw his amendment.