Amendment 12BA

Part of Online Safety Bill - Committee (2nd Day) (Continued) – in the House of Lords at 8:45 pm on 25 April 2023.

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Photo of Lord Browne of Belmont Lord Browne of Belmont DUP 8:45, 25 April 2023

My Lords, first, I tender an apology from my noble friend Lord Morrow, whose name is attached to the amendments. Unfortunately, he is unable to participate in tonight’s debate, as he had to return home at very short notice. I will speak to the amendments in this group. I thank the noble Baroness, Lady Ritchie, and my noble friend Lord Morrow for tabling the amendments, allowing for a debate on how the duties of Part 5 should apply to Part 3 services and to probe what sites Part 5 will cover once it is implemented.

The Government have devised a Bill which attempts carefully to navigate regulation of several different types of service. I am sure that it will eventually become an exemplar emulated around the world, so I understand why there may be a general resistance on the part of the Government to tamper with the Bill’s architecture. However, these amendments are designed to treat pornographic content as a clear exception wherever it is found online. This can be achieved, because we already know the harm caused by pornography and Part 5 already creates a duty to ensure that rigorous age verification is in place to stop children accessing it.

The Government recognised that the original drafting of the Bill would not address the unfinished business of Part 3 of the Digital Economy Act. In 2017, as many will recall, this House and the other place expressed the clear demand that online pornography should not be accessible to children. Part 5 of the Bill is the evolution of that 2017 debate, but, regrettably, it was bolted on belatedly after pre-legislative scrutiny. That bolt-on approach has had the unfortunate consequence of creating two separate regimes to deal with pornography. Part 5 applies only to “provider pornographic content”, which is content

“published or displayed on the service by the provider … or by a person acting on behalf of the provider”.

Clause 70 makes it clear:

“Pornographic content that is user-generated content … is not to be regarded as provider pornographic content”; in other words, if pornography is on social media or the large tube sites, it falls under Part 3, not Part 5. That means that not all content will be regulated in the same way or at the same time.

Amendment 125A addresses an issue raised by this two-tier approach to regulation. Clause 49 defines “user-generated content” as content

“generated directly on the service by a user of the service, or … uploaded to or shared on the service by a user of the service, and … that may be encountered by another user”.

Encounter is defined broadly, meaning to

“read, view, hear or otherwise experience content”,

including adding “comments and reviews”. By including reviews, that seems to be a broad definition. Does it include a like, an up vote or an emoji? That is an important question that Amendment 125A probes. On this basis, it seems that almost all the most popular pornographic websites are user-to-user services, and therefore will fall into Part 3.

I echo the question asked by the noble Baroness, Lady Ritchie: can the Minister identify what sites will be regulated by Part 5, how much United Kingdom traffic is directed to those sites and how will any site covered by Part 5 be prevented from adding functionality to allow encounters on its platform to move that site from Part 5 to Part 3 to delay implementation?

These are important questions. Ofcom could accelerate implementation of Part 5 separately and indeed it would be disappointing if Ofcom delayed Part 5 implementation to avoid these very questions. These amendments are needed to allow Part 5 to be implemented quickly and for pornography to be regulated across the Bill swiftly. Put simply, Part 5 does not rely on the vast amount of secondary legislation which we must consider before Part 3 can be brought into operation. But to do so without these amendments would be to abandon a sensible goal of creating a level playing field for any site which publishes pornographic content and would affect only a minority of the smaller sites, or indeed no websites at all.

The amendments before your Lordships today apply a far simpler logic. They place within scope of Part 5 any pornographic content wherever it is found and place a duty on Part 3 services to comply with the duties in Clause 72. I emphasise that this is not to apply age gates to an entire service, only the adult content. So, for example, on Twitter, research has found that 13% of tweets lead to pornographic images and videos. That platform would need users to prove they were 18 or over before they could see those particular tweets but not for the rest of the Twitter platform. Part 5 can very simply deal with all pornography online, so it can be introduced on a stand-alone basis allowing us to do so within, say, six months of Royal Assent. I understand that amendments seeking to achieve this are tabled for later in Committee.

We should keep in mind that in December 2018 Ministers announced that age verification would be required from the following Easter. We know the major porn sites had contracts negotiated with age-verification providers as they had accepted the inevitability of the policy and were prepared to comply. We saw in France, just over a year ago, that these sites were able to implement age checks with just 10 days’ notice.

By addressing all pornographic content under one part of the Bill, we would also remove the ambiguity Part 3 creates. User-to-user platforms are required only to act proportionately. For example, the social media site I referred to earlier may determine that only 13% of its content is pornographic. One may think that is more than enough to merit age verification. Ofcom may well agree. But this is a judgment, susceptible to judicial review. For the price of a small legal team, a site could delay enforcement for years as it argued through hearings and appeals that the demands on it were disproportionate. Part 3 suggests the use of age assurance and offers age verification as an example, not a requirement, but Part 5 leaves no room for doubt.

The unsuitability of pornography for children is not something we expect to change. We do not need to future-proof the Bill against the possibility that one day a Minister decides it is no longer something we wish to protect children from seeing. Indeed, if they do, I much prefer it if they have to return to Parliament to amend primary legislation before the law is relaxed.

I hope the Minister will see the logic of a level playing field to deliver a policy with widespread support across all ages and political parties. Indeed, without addressing pornography separately—and, in turn, quickly —we will pass a Bill with no discernible impact before the next general election. While they are walking to the polling station, parents will still fear what their children are looking at online. This is a quick win and a popular move, and I hope the Government will amend the Bill accordingly so that this House does not need to do so when we revisit this important issue on Report.