Online Pornography (Commercial Basis) Regulations 2018 - Motion to Approve

Part of the debate – in the House of Lords at 6:15 pm on 11th December 2018.

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Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Digital) 6:15 pm, 11th December 2018

My Lords, we on these Benches want the regulations and draft guidance to come into effect. The child protection provisions are a significant element of the Digital Economy Act which, although not entirely in line with what we argued for during its passage, we supported in principle at the time and still do, while realising, as my noble friend Lord Paddick said, that they are not the conclusive answer to children’s access to pornography. As he also said, a number of areas need to be addressed in the course of today’s debate.

For a start, as several noble Lords said, it seems extraordinary that we are discussing these sets of guidance nearly two years after the Digital Economy Act was passed and nearly a year after the Government published their guidance to the regulator, the BBFC. What was the reason for the delay?

Next, there is the question of material that falls within the definition of being provided on a commercial basis under the Online Pornography (Commercial Basis) Regulations, the subject of today’s debate. Several noble Lords mentioned this. As drafted, they do not currently include social media or search engines and on these Benches, we regret that the Government have decided to carve out social media from the definition. This is a potentially significant loophole in the regime. It is important that it is monitored and addressed if it damages effectiveness. It is in particular a major concern that social media and search engines do not have any measures in place to ensure that children are protected from seeing pornographic images.

The Secretary of State’s guidance to the AV regulator asks the BBFC to report 12 to 18 months after the entry into force of the legislation, including commenting on the impact and effectiveness of the current framework and changes in technology which may require alternative or additional means of achieving the objectives of the legislation. In addition, under Section 29 of the Digital Economy Act, 12 to 18 months after the entry into force of the scheme, the Secretary of State must produce a report on the impact and effectiveness of the regulatory framework.

This is therefore a clear opportunity to look again at social media. The Government have made some reference to legislating on social media, but it is not clear whether they intend to re-examine whether the definition of commercial pornography needs to be broadened. Can the Minister assure the House that this will be dealt with in the internet safety White Paper, that the Secretary of State’s report will cover the level of co-operation by services such as social media and search engines, which are not obliged to take enforcement action on notification, and that, in doing so, it will firmly tackle the question of access by children to pornography via social media?

Next is the question of resources for the age-verification regulator. This is a completely new regime, and with fast-changing technology, it is vital that the BBFC, as the AV regulator, has the necessary financial resources and stable grant funding to meet the important child protection goals. Can the Minister assure us that the Government will keep resources available to the BBFC in its AV regulator role under review and undertake explicitly in the Secretary of State’s annual report to deal with the question of resources enabling the BBFC to carry out its work?

Next is the question of the BBFC having chosen to adopt a voluntary scheme. On these Benches, we welcome the voluntary scheme for age-verification providers referenced in annexe 5 to the draft Guidance on Age-verification Arrangements. In fact, it bears a striking resemblance to the scheme that we proposed when the Act was passing through Parliament, which would have ensured that a scheme involving third-party companies providing identity services to protect individual privacy and data security would be engaged. As I recall, the noble Earl, Lord Erroll, helped greatly in convening providers of digital identity schemes to show what was possible. I think he is still ahead of us today.

Our key objections were that what was originally proposed did not sufficiently protect personal privacy. The BBFC is to be congratulated on establishing the certification scheme. As I understand it, it already expects all the major providers to undertake the certification process. Furthermore, because the scheme is voluntary, these assessments will be for foreign-based as well as UK providers, which is a major achievement and could not be accomplished with a UK statutory scheme.

The key to the success of the voluntary scheme, however, is public awareness. I hope that the Minister can tell us what the DCMS is doing to support the promotion of the BBFC’s kitemark in the three months before the scheme comes into effect.

Next, there are the JCSI criticisms set out in its report on 28 November. This House rightly always takes the criticisms of the JCSI seriously, and the Minister set out a careful response to them. I do not always pray a government memorandum in aid, but the BBFC was following the Secretary of State’s guidance to the AV regulator. Under the terms of Section 27 of the Digital Economy Act, as a result of amendments in the Lords during its passage, the BBFC was charged with having regard to the Secretary of State’s guidance. The JCSI suggests that the BBFC could have chosen to ignore “incorrect” Secretary of State guidance, but that would have put it in an impossible position.

I shall not adumbrate all the different areas, but the inclusion of what was necessary in compliance with Section 27, the advice on best practice, the annexe setting out the voluntary scheme and the role of the ICO all seem to be helpful as part of the guidance and proportionate in terms of what the AV regulator prioritises.

There are a number of other aspects of these sets of guidance worthy of mention too. As we have heard, this age-verification framework is the first of its kind in the world, and there is international interest in it. Are the Government discussing with the BBFC what lessons there are in terms of encouraging robust AV for younger age groups and for other types of potentially harmful content? Will the Government use the expertise developed by the BBFC as the age-verification regulator in the internet safety White Paper?

Finally, although we have not had the benefit of the arguments of the noble Lord, Lord Stevenson, because of the way in which procedures today have operated, I come to the criticisms made by the noble Lord on the failure to bring Section 20 into effect. I agree in principle that it would be desirable to have the full set of powers envisaged by the Digital Economy Act, but it seems that the BBFC is very confident of its current enforcement powers, particularly in relation to ensuring that payment service providers cut off services under Section 21 for those who are non-compliant, as my noble friend Lady Benjamin mentioned, and of course, the last resort—the powers requiring ISPs to block access to material under Section 23 of the Digital Economy Act. Either of these will have major consequences for non-compliant providers of pornographic material.

I very much look forward to hearing the Minister’s response. Of course, this guidance and these regulations are not the be-all and end-all and not the total solution, but I very much hope that they will form part of the solution.