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

Part of the debate – in the House of Lords at 6:30 pm on 11th December 2018.

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Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport 6:30 pm, 11th December 2018

My Lords, I thank noble Lords for their contributions and for the myriad questions which I will try to answer, in a slightly random order. It is important that we take a bit of time to discuss these; as many noble Lords have said, this is the start of something quite complicated. As I said at the beginning, we ought to bear in mind that we are trying to protect children. In the debates during the passage of the Digital Economy Bill, the Government always acknowledged that they would not have a complete solution, as many noble Lords said and as I mentioned during my opening remarks. We will take on board noble Lords’ comments. Indeed, we have shown—this is a partial answer to the question of why it has taken so long—that we have consulted quite widely; we have discussed the wording of the regulations themselves and the guidelines; and the Secretary of State’s guidelines to the BBFC, which the noble Lord, Lord Clement-Jones, mentioned, were available during the passage of the Digital Economy Bill.

We have tried to involve people, which is right given that we are at the beginning of something unique in the world. When we come to talk—I put a certain amount of emphasis on this—about social media and some of the areas that we do not cover in these regulations, we will look at those either in the review to come within 12 to 18 months or in the online harms White Paper. We are still discussing that White Paper and are still open to ideas about what it should include. I am pleased to say that the Secretary of State will make a meeting available to all Peers to discuss what they think should be in the White Paper. We will do that as soon as we can; I will let Peers know about it in due course.

I turn to the regret Motion tabled by the noble Lord, Lord Stevenson. The concern pertains to the fact that the regulations and BBFC guidance do not bring into force the provisions of the Digital Economy Act 2017, which would have given the regulator powers to impose a financial penalty on persons who have not complied. The noble Lord, Lord Stevenson, is not the only noble Lord to have mentioned that.

The regulator will have powers to issue enforcement notices and enforce these through civil proceedings such as proceedings for an injunction, and to give notice to payment service providers, ancillary service providers or direct internet service providers to block access to non-compliant material. It will have the flexibility to exercise these powers on a case-by-case basis, depending on what it thinks will be most effective. I say to the noble Earl, Lord Erroll, that, while there is no plan to block sites on day one, because a proportionate approach that gets people on side without needing to do so is preferable, the regulator will have the power to do that if it wants to. The Government and the BBFC believe that these powers will provide a sufficiently strong incentive to comply with the age-verification requirement. As we have said, there is a mandatory requirement for a review within 12 to 18 months. The Secretary of State already has the power, in the Act, to extend the powers of the BBFC if necessary.

I turn to some of the specific questions asked by noble Lords—I apologise for the slightly random order. The noble Lord, Lord Clement-Jones, asked whether the Government are discussing with the BBFC other possible forms of verification for younger groups. We will work with the industry to ensure its terms and conditions are upheld. We will also work with the tech sector to identify new approaches. The joint DCMS/Home Office White Paper will be published this winter and will set out a range of measures which could include that; however, as I said, this has not yet been fixed. We welcome noble Lords’ input.

The noble Lord, Lord Stevenson, has always had concerns about the BBFC and he mentioned those not only during the passage of the Act but when we designated the BBFC earlier this year. On appeals, it has considerable experience of administering an independent appeals procedure for the classification of film. We published the BBFC’s proposed appeals arrangements when the designation proposal was laid. It is important to note that the independent appeals panel will not include the regulator, the Government or affected industries. I believe there has not been a successful appeal from the film side for nearly 10 years, so we are content with the way things stand.

We are relying on the fact that the BBFC is a respected organisation with expertise in classifying content; it has done so for cinema releases since 1912 and for video content since 1984. It has a trusted reputation and is good at making difficult editorial judgments and giving consumers, particularly parents and children, clear information about age-appropriate content.

We feel that the existing financial enforcement powers will be okay, but of course we will be able to look at that in the review. The noble Earl, Lord Erroll, asked whether enforcement will take too long. A wide range of regulatory sanctions is available and there has already been engagement with ISPs. Based on that engagement, we are confident that the sanction will be effective. The wording of the Secretary of State’s guidance to the regulator stresses the need to take a proportionate approach and that is what is intended.

Several noble Lords mentioned the timeline and asked why it has taken so long to put the regime in place. The number of questions raised in this debate and the potential critiques of where we could have improved the overall regime show why it has taken so long. We have tried to consult and to get as much consensus as possible. We have always said that this is not a perfect solution, but age verification will make a substantial difference and prevent many children accidentally stumbling across pornography. To that extent, we think that it is a good thing.

There is no legal deadline for bringing the requirements into force but we are now in the final stages of the process. If your Lordships agree to these age verification arrangements, we will have reached the end. Following parliamentary approval, we will ensure that there is a sufficient period for the public and industry to prepare for age verification. I think we have said that there will be a minimum of three months, so we anticipate that enforcement will begin around Easter 2019, give or take some weeks.

The noble Lord, Lord Clement-Jones, mentioned resources, and we will obviously keep an eye on that. We understand that if a regulator is asked to do something but has inadequate resources, that is suboptimal. I thank the noble Lord for his remarks on the JCSI. We will, as he suggested, also take into account the experience that has been developed by the BBFC and will have regard to that for our White Paper if we think it appropriate.

The noble Lord, Lord Paddick, talked about privacy. It is of course crucial that users are able to verify their age in a way that protects their privacy. I do not know whether there was some misunderstanding on the part of the noble Earl, Lord Erroll, but the age-verification procedures have to meet the requirements of the Data Protection Act and the GDPR. That is a given, and the ICO will make sure that that is the case. We wanted an even better standard of protection. We will effectively have a gold standard to build trust, but every age-verification site will have to obey the GDPR, so in any event a strong privacy and personal data protection standard will be in force. The age-verification solutions that offer the most robust data protection, as set out in the gold standard, will be set following an independent assessment and will be published on the BBFC website for everyone to see.

Many noble Lords talked about the definition of extreme pornographic material. This was debated extensively—I will not forget it in a hurry—during the passage of the Bill. It is not within the scope of this debate, focusing entirely on the definition of commercial availability. However, because the primary legislation requires the Secretary of State to consult on the definitions before publishing a report on the impact and effectiveness of the regulatory framework, I think that is where we can continue that discussion. I assure noble Lords that we will revisit this issue. I suspect that I do not need to give that assurance and that it will be brought up anyway, but I assure the noble Baroness, Lady Benjamin, that we will be flexible and proactive.