Clause 2 - Prohibition of tobacco advertising

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at on 1 February 2001.

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Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I beg to move amendment No. 2, in page 1, line 19, leave out

`a separate entity containing, or being,'.

The amendment is a probing amendment to find out how the Bill will work in practice. Many parties will be affected by a ban on tobacco advertising and the amendment would introduce an element of practicality into the clause. What lays behind the proposal to omit any reference to a separate entity is my worry that it is unreasonable to expect magazine publishers to be responsible for leaflets containing tobacco advertisements that are subsequently placed inside the magazines before they are sold. Paper print distribution is a high-speed bulk business and it is not unusual for inserts to be placed in newspapers and magazines. I am sure that all members of the Committee have picked up newspapers and held them up the wrong way only to find leaflets falling on to the pavement that they then have to scoop up.

There is another practical difficulty. I doubt whether editors of the large broadsheet newspapers are aware of how many inserts are placed in their newspapers on any particular day. They would be more concerned about the editorial content. I am most worried about the little guys at the bottom of the system who may be caught by the clause, particularly those in the corner shop. They do not have the time to check each magazine, periodical or newspaper for separate entities that may have been inserted in them.

Any member of the Committee who visited his or her paper shop this morning, in the murky gloom of London, will know how busy newsagents are from the early hours. Great stacks of papers are often thrown outside the door in the small hours and have to be rapidly placed in the shop for sale. Sometimes, the string ties are just cut and the papers left in the pile.

I asked my newsagent whether there was any practical way in which he can reassure himself about what is or is not inserted separately into the newspaper. He cannot—certainly not in the time scale within which he operates. The amendment would ensure that innocent people are not caught by the Bill. It may not provide sufficient protection for people, but I hope that the Minister will understand the spirit behind it. It is designed to examine the way in which material is distributed and to ensure as far as possible that people would not be caught unfairly by the Bill.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

I understand that you had a very early start this morning, Mr. Malins, to ensure that we could start on time. Thank you.

The amendment would make it unclear whether leaflets, flyers or attachments inside publications that include tobacco advertisements would be covered. That is a serious loophole. It is true that when we open our Sunday newspapers a load of leaflets fall on the floor. Clearly, many companies and businesses regard that as an effective way to advertise their products. To allow such advertising would be a significant loophole in the Bill, and a mistake.

The hon. Lady was concerned that newsagents would need to check every magazine. The Bill sets out clear defences for people who could not reasonably be expected to know whether a publication contained a tobacco advertisement. If they had been told that a magazine was likely to be distributing a flyer, there would be some obligation on them to check, but in the unlikely event that someone had slipped in surreptitiously a leaflet that no one knew about—and could not reasonably be expected to have known about—they would have a defence under the Bill.

The defences appreciate the situation of an innocent person in the distribution chain, who did not know—and could not reasonably be expected to know. We shall discuss those defences later. They are reasonable. It is important, however, to include flyers and leaflets because they make so much difference and are an important part of the business of advertising.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

When we debate the defences, we will be able to probe the Government further on how someone can prove that they could not reasonably have known. That comes close to the position that I was coming from. In some cases it is hard to prove—it is hard to find words that demonstrate the necessary objectivity. One's view of whether one could reasonably have known about something is inevitably subjective. Someone might say, ``You definitely should have known what was going to happen'', but there may be extenuating circumstances. Only the individual knows why they might not reasonably have been expected to know.

When we deal with the defences, I will spend more time probing the Government about how someone can successfully prove that defence. When we return to the practicalities of defence issues, we shall have another chance to go into the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I beg to move amendment No. 3, in page 1, line 22,

leave out from `form' to end of line 23 and insert `or participating in doing so'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

With this it will be convenient to take the following:

Amendment No. 20, in page 1, line 24, leave out subsections (5) and (6).

Government amendment No. 16.

Amendment No. 4, in page 1, line 25, leave out `carry on business' and insert

`transact business with a person living'.

Government amendments Nos. 18 and 19.

Amendment No. 8, in clause 5, page 3, line 7, leave out `carry on business' and insert

`transact business with persons living'.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

This is an important amendment to an important clause. At one level, it deals with a different subject, namely, internet service provision, which includes electronic mailing. I hope that, under your good chairmanship, Mr. Malins, we shall be able to give the matter a good airing. It is the only clause that deals in detail with internet service providers. I am anxious that we articulate their concerns. It is not easy for any hon. Member because the new technology moves fast. As I do not profess to be an expert, I was hoping that my hon. Friend the Member for South Dorset (Mr. Bruce) would be here by now: he is one of my allies. That is a veiled instruction to bring up the reserve.

I hope that some Committee members are highly conversant with internet service provision, because we have to try to understand the new technology. We are legislating while it is in full growth and the implications are difficult for us to grapple with.

I shall concentrate on electronic provision, although the clause relates to other forms of distribution and advertising. However, we can return to those in the stand part debate. I do not intend to touch on those matters in speaking to the amendments.

The amendments focus on electronic advertising and internet service providers. In tabling their amendments the Government acknowledge the anxiety expressed on the Labour Benches, too, that the Bill as drafted might not work ideally for internet service providers. I am pleased that the Government have tabled amendments, as it will help us to work together towards a better form of words that does not unnecessarily penalise such people if at all possible.

We are discussing means of transmission. Three main functions are involved. The first relates to the provision of access to the web and theoretically stopping specific sites being reached, the theory of which will come under scrutiny when we consider the amendments.

In practice, the ability to stop specific sites being reached would require enormous resources and may not be feasible or practical for ISPs. They have pointed out that banning a site would give it notoriety, prompting many people to access it. That is perverse, but we all understand human nature. No sooner is something banned than people are interested and want to find out why. The ISPs have a fair point.

Internet service provision, by definition, operates in a global market. It is therefore interesting for us to consider what could realistically be the legal parameters of the bill. It would be difficult for the United Kingdom Government to shut down a foreign website that carried tobacco advertisements, as we do not have the jurisdiction to do so. Electronic advertising knows no geographical boundaries in the way that paper or print could be stopped at port or airport. The usual physical barriers do not apply.

The second function that will be affected is the ISPs' provision of hosted web space for websites. In this case, ISPs have more control and can be more effective in scrutinising what they are hosting, but the difficulty for the largest internet service providers is that they have many websites. It would be a mammoth task for the ISP to act continuously as censor and scrutineer for every detail that goes on to them. Again, it is a question of resources and the feasibility of policing hosted websites in that way.

The third function of ISPs that will be affected by the way in which the Bill is drafted is the provision of newsgroups, or bulletin boards, on which articles or advertisements can be posted. An article posted with an ISP newsgroup can be picked up by linked newsgroups and run by other ISPs world wide. A double problem is involved. Such items may be pinned up on a billboard, perhaps in this country, and may subsequently, in the absence of physical boundaries, become accessible globally—and vice versa. Through the linkage, an ISP may provide access to bulletin boards and billboards in other countries, over which we have no jurisdiction, that contain advertisements for tobacco products. Checking everything on such newsgroups and bulletin boards therefore becomes impossible. The purpose of amendment No. 3 is to demonstrate that it is unfair to expect internet service providers to be responsible for tobacco advertisements on hosted websites and the advertising bulletin boards to which they are linked.

The group of amendments contains many that I tabled. Amendment No. 20 has something in common with the Government amendments. I propose that we leave out subsections (5) and (6), because the Bill is not the right place for such provisions. It is incidental that the focus of the clause on advertising by ISPs is tobacco. At the root of the problem is how to legislate for the activity of ISPs generally. We might as well be discussing a different product.

If I understand correctly, subsection (5) will mean that it is not an offence for a person who does not carry on business in the United Kingdom to publish a tobacco advertisement on a website that is accessed in the UK. That will also apply to whoever devises or causes an advertisement, such as the ISP. Under subsection (6), an ISP that is not aware of a tobacco advertisement is not regarded as having published or distributed it. If those subsections are left in the Bill, they will have a restrictive effect on the internet service industry.

The Government claim that they want to make Britain a world and European leader in e-commerce. I remember listening to the Minister responsible for the matter speaking at length on the subject, and I am sure that she passionately believes in it. The Government are unlikely to be able to achieve that goal if subsections (5) and (6) are left in the Bill.

In the Bill, ISPs are regarded as publishers and/or distributors of web pages and any tobacco advertisements that might be contained within them. Interestingly, that is not how other European countries regard the role of ISPs. I am sure that the Minister is aware that, in common with other member states, we must transpose European directive 2000/31 on e-commerce into law by 17 January 2002. That directive treats ISPs not as publishers or distributors, but as conduits for the transmission and immediate and temporary storage of information.

The Committee will understand straight away that a conduit is a different concept from that of a publisher or distributor as described in the Bill. Under the European directive, ISPs are placed in a better position because they do not have responsibility for content. Therefore, member states cannot impose on them a general monitoring obligation of the sort that we would be imposing if we allowed the clause to be included in the Bill as drafted. There is considerable potential for the United Kingdom's position to be incompatible with European law. I will be interested to hear the Minister's comments on the compatibility of the Bill with that directive.

As all advanced developed economies are trying to inch their way forward in dealing with the new technology, it might interest the Committee to know that in the United States of America, ISPs have immunity over any content to which they provide access. Given that the United States is at the cutting edge of much of the new technology, we should note that position with interest. Surely we do not want to place ourselves at a competitive disadvantage to the leading-edge competitor in new technology.

The requirements placed on internet service providers who carry on their business in this country—[Interruption.]

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

The hon. Gentleman points out that my hon. Friend the Member for South Dorset has arrived. I thought that my speech was going quite well, but that has really thrown me off course.

The requirements placed on internet service providers who carry on their business in this country will be impractical. If we could scroll the clock forward and look at the way that they are affected, we would see that their life would be made extremely difficult. It seems inconsistent with the way in which other economies are approaching the world wide web. It might place such companies at a competitive disadvantage in the provision of internet services.

The internet and websites should not be excluded from the scope of the advertising prohibition, but the Government could suggest more coherent proposals to regulate them, with regard to the transposition of the European directive into UK law. The Government need to take account of the technological and scale difficulties of enforcing the provisions and to acknowledge that, technologically, more can be achieved than that to which the provisions of the Bill aspire.

The Opposition have tabled two more amendments in this group, which I shall discuss before the Minister deals with the Government amendments. Amendment No. 4 is small. I may be corrected, but ``carry on business'' is, I understand, an accepted legislative phrase and a good deal more specific than it would appear on first reading. My anxiety about the use of the phrase is that, if we are to have effective legislation for internet companies working in this new area, it is important to be more specific about what aspect we want to control. Therefore, my phrase

``transact business with a person living'' was designed to tackle the problem of enacting in British law a provision to control an internet service provider that was advertising tobacco in this country. We must be clear on what aspect of the internet service provider's commercial activity we are trying to legislate. By definition, the internet service provider's market is global. It interacts with an enormous geographic area and, potentially, with an enormous number of people, over which our law cannot hope to have control. I understand the Government's intention. My amendment is probing, and is designed to narrow down what it is practical for our law to try to control.

Amendment No. 8 has exactly the same objective but for clause 5. Unlike a publisher or distributor of physical printed matter, the market that we are discussing has no physical barriers. It is difficult, unilaterally, to make national legislation work and I am concerned about the feasibility of doing so. I hope that when she speaks to the Government amendments, the Minister may be able to shed some light on it.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

On a point of order, Mr. Malins. Normally one wants to support colleagues' amendments, yet the Government now have a completely new way of looking at this issue. I seek your guidance as to whether it might be more sensible to try to catch your eye after the Minister has introduced her amendments so that we may understand her position.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Yes, the hon. Gentleman may catch my eye at any stage during the debate. In fact, he may catch it, as may other members, more than once. It is a matter for him. Bearing in mind the fact that we are also considering Government amendments, it is in order for him to enter the debate at a later stage.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

There are seven amendments in the group. I shall deal with them in turn, although not necessarily in the order set out.

Amendment No. 3 would delete

``providing the means of transmission''.

That would exclude, on principle, those involved in certain aspects of distribution by electronic means in a way that does not happen for print and other distribution. In practice with current technology, British Telecom, which provides the wires, would be excluded on principle. We have some sympathy for the intention behind the amendment because it would clearly be ludicrous for BT to be guilty of an offence if someone used the phone to access the internet and read a tobacco ad. However, given the current technology, BT will be not caught by the Bill.

The principle is to introduce a comprehensive ban and then targeted defences. In principle, all those involved throughout the chain of publishing and distributing are included under the Bill, but they are given specific defences appropriate to their circumstances. For BT or a similar company involved in the means of transmission for electronic distribution, it would mean that that company was unaware—which is covered by amendment No. 19—or that it could not prevent it. For that reason, it would be exempt, not because it provides the means of transmission. The exemption is based on the defence rather than by being ruled out in principle.

If the Bill is to stand any chance of keeping up with changes in technology and so forth, the right approach is to set out a comprehensive ban first and then to provide specific—

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

The Minister is going down an alley, at which point I must pull her up. She has not yet spoken to her amendments. Given the overwhelming number of Labour Members on the Committee, I suspect that her amendments will be carried rather than those of my hon. Friend the Member for Meriden (Mrs. Spelman). It might be for the convenience of the Committee if the Minister introduced the Government amendments and described what she believes will be their effect. For the sake of clarity that might be better. One amendment deletes subsection (6), which deals with the internet.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Order. It is, of course, for the Minister to decide how she approaches the debate.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

We have seven amendments before us. I shall set out the Government's case for our own amendments and our opposition to those that we are rejecting. I shall be happy to respond to the questions raised by the hon. Member for South Dorset when he has heard what I have to say, but it is sensible for me at this stage to set out the Government's opinion on all the amendments. I will come to the Government amendments in time, if the hon. Gentleman will have a little patience.

Amendment No. 20 removes a defence for people abroad who have a website that is accessed in the United Kingdom or published on an internet service provider here. It also removes the defence of internet service providers that they are unaware of the tobacco advertisement. In principle, both defences should remain. It is true that Government amendment No. 16 would delete clause 2(6), but only to replace it with a redrafted version of the same defence.

It is right for internet service providers to have specific defences. First, there should be a defence for those who are abroad, but have a website accessed or published on an ISP in Britain, because we cannot claim extraterritorial jurisdiction on the issue. Secondly, it is right that ISPs should have the stronger defence that they are unaware, not simply the defence that exists for other forms of print, publishing and distribution that they did not know and had no reason to suspect. I shall return to the issue when we discuss Government amendment No. 19.

Under Opposition amendments Nos. 4 and 8, the wording that refers to companies that do not ``carry on business'' in the United Kingdom would be replaced by wording such as companies that do not ``transact business'' with anyone living in the United Kingdom. As the hon. Member for Meriden said, ``carry on business'' is a standard term in legislation. The reason for including it is that we do not have extraterritorial jurisdiction on the issue and we need a practical Bill that can be implemented.

The hon. Lady is right: in terms of the internet and many forms of communication nowadays, we are in a global market, and there are limits to what we can do when we operate simply in a United Kingdom context. That is why we were also keen that the ban on advertising should be achieved at a European level. We shall continue to work with European partners when the Commission produces further proposals on tobacco advertising. It is also the reason that we are working with the World Health Organisation on an international framework for tobacco control. The powers that we have in the United Kingdom to restrict tobacco advertising are restricted to the companies and areas over which we have jurisdiction. We must recognise that.

I have a problem with the amendment proposed by the hon. Lady because it is unclear. It would allow companies that do not transact business with someone living in the United Kingdom, even if they were based here, to have a defence under the Bill. I assume that she is talking about exporters that do not transact business with someone in the United Kingdom. If they advertise in the United Kingdom, however—including advertising on the internet—they will be caught by the Bill, as they should be. It is slightly puzzling. I am not sure how the amendment would affect companies that transact business with someone in the United Kingdom, even if they are based abroad. By deleting our defence for those who do not carry on business in the United Kingdom, we would end up including under the offence companies who were based abroad, but transacted business with someone based in the United Kingdom.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health) 9:30, 1 February 2001

Is the Minister aware of a company that is based abroad, but is advertising under the address I hope that that does not constitute an advertisement; the only reason I give the address is that it is important. I wish that I had the advertisement with me, because it would be graphic; it is the size of a cigarette box, in the Marlboro colours and is clearly a piece of tobacco advertising. The company is based abroad and transacts business in this country with people living here. I am concerned that it might slip through.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The question for us is whom we are able to prosecute. If the advertisement were on an ISP based here, the ISP would be caught only if the defences were not met—in other words, once it was made aware of it. If the advertisement had been devised by a company based in the United Kingdom, that would also be caught. However, we do not have extraterritorial jurisdiction and we would not be able to prosecute a company based abroad that was somehow linked in the chain. I recognise that the internet makes the matter complicated, but we have to be aware of the territorial limits of the ban that we are able to impose.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

This point goes to the heart of whether one is simply creating an enormous loophole that will ensure that people who are manufacturing tobacco products overseas can continue to advertise while people within the United Kingdom cannot. Subsection (2) refers to a person who distributes tobacco in this country. Am I right in saying that if a tobacco distributor in the UK purchases from France, Germany or elsewhere supplies of tobacco manufactured outside the UK, the manufacturer of which advertises his products via the internet—not specifically for the UK market—the manufacturer would not be caught by the Bill and neither would the distributor because he is not pressing the product, the manufacturer is?

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The Bill refers not to distributing products but to distributing and publishing advertisements. The hon. Gentleman is right that we will not be able to prosecute companies that advertise from abroad because we do not have extraterritorial jurisdiction. However, if companies have branches or any business presence in the UK, they will be covered by the Bill.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

I direct the Minister's eyes to the first line of subsection (2). It is, of course:

``A person who in the course of a business prints, devises or distributes''—

I am sorry, I am incorrect and the Minister is correct. The case that I have described is one in which a company manufactures its cigarettes overseas and advertises them, and an independent company within the United Kingdom imports those same cigarettes. Is that company caught? It is within our jurisdiction, and the advertisements are provided by the manufacturer, not the distributor.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The question for the courts would be whether the company was involved with the advertisement in any sense, or whether it could be said that it was in some way paying for that advertisement or responsible for it. The Bill states that those who are involved in devising, distributing, printing or publishing the advertisement and who carry on business in the UK will come under the scope of the Bill. If they do not carry on business in the UK, the Bill cannot apply to them as we do not have extraterritorial jurisdiction. However, we will continue to pursue a tobacco advertising ban at European level and we are keen to see proposals from the European Commission. We are also keen to work with the World Health Organisation to look at the international framework of tobacco control.

Government amendments Nos. 16 and 18 are drafting and consequential amendments which tidy up and clarify the Bill. Government amendment No. 19 is the substantive one. In part, its purpose is to clarify and to avoid overlap in the drafting, but there is also one change in substance to which I draw the Committee's attention.

The Bill provides general defences for those involved in publishing and distribution that they did not know and had no reason to suspect that tobacco advertising was taking place. Internet service providers will have a stronger defence under clause 2(6) if they were unaware of the advertisement. They may have reason to suspect such advertising, but the process of checking is so complex and arduous that they should have the stronger defence of being unaware. That defence is replicated in Government amendment No. 19. We have also strengthened the defence for those involved purely in electronic distribution and that includes BT, companies that provide the wires and those involved in the chain beyond ISPs. That means that ISPs and others involved in electronic distribution are under no obligation to check. They are defended until they are made aware of such advertising.

The hon. Member for Meriden asked whether ISPs should be regarded as publishers or distributors. We are aware that different views are held about that issue. The Bill does not define whether ISPs should be regarded purely as publishers or distributors. Case law and legislation may develop in such matters, however, and we want to ensure that the ISPs have a defence, regardless of whether they are publishers or distributors and how they may be described in future case law or legislation.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

What is the Minister's definition of internet service providers? Listening to her speak, I do not think that she knows.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

Without more warning, I shall not attempt to give the technological description of internet service providers. There is a strong view that they are merely distributors and that they become publishers when they are made aware of something. However, it is important for the Bill to keep pace with changing technology, case law or legal definitions, so we want to provide the same defences of being unaware if such bodies are regarded as publishers or distributors. If publishers and distributors are involved, even if they are not ISPs in the future, we must recognise that the Bill deals with a developing area and that matters that are covered by electronic means should have particular additional defences beyond those that are applied to what is in print. We must remember that the ISPs, the internet and electronic publishing would be included under the Bill unless we explicitly excluded them, and we are going further by recognising such circumstances and providing an extra defence.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

I notice that the Minister has received a note to help her. We recognise as being an internet service provider, but when someone pays to call up a provider on his BT line, he pays part of the money to BT, part of it to the ISP, part of it to AT&T and part of it to just about everyone in the country. Unless we define what is meant by an internet service provider, we shall be defining companies such as BT, which might not be the ISP, as the body that is publishing the advertisement and it will not have the defence that the Government are trying to give it, while those who want to get round the law can do so. I shall go into the further problems later in the sitting.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The amendment would provide the defences. It would ensure that companies such as BT that are involved in electronic distribution also have the defence that they were unaware. The current drafting restricts that defence to ISPs, but the amendment broadens that. The hon. Member for South Dorset is right that the technology or definitions may change in time. At present, ISP is a recognised term and we understand what it means. However, as technology is changing rapidly, we should go further. With Government amendment No. 19, in relation to a tobacco advertisement that is distributed as mentioned in section 2(4)—by electronic means—an ISP will also have the defence that it was unaware of what it distributed and that, having become aware, was unable to prevent its further use, or that it

``did not carry on business in the United Kingdom at the...time.''

By extending it, we provide a defence for companies such as BT, which might receive payment in the way that the hon. Gentleman describes.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset 9:45, 1 February 2001

The Minister will say that that is a defence for the ISP, which we have not yet defined, and not for the other people who might be involved in the electronic transmission. The amendment states:

``In relation to a tobacco advertisement which is published or caused to be published by electronic means'', and then gives the defence only to the person we have yet to define as an ISP. That is where the drafting is wrong.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The hon. Gentleman will notice that subsection (5A) in the amendment states:

``In relation to a tobacco advertisement which is distributed as mentioned in section 2(4), it is a defence for a person charged with an offence under section 2(2) of distributing it or causing its distribution to prove'' that that person was unaware, that they were unable to prevent it and that they

``did not carry on business in the United Kingdom at the relevant time.''

The defence has been widened to include BT through subsection (5A). That is the content to which I was referring but which has explicitly changed when compared with the previous drafting.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

I am finding this subject genuinely interesting. How technology interacts with law making is always problematic, as I have said on many occasions. May I be clear? The definition of ISP could be important. I have just been signing up with an ISP—Demon—during this Committee. If I access an ISP through a BT line—which I did—what role does BT play? Subsection (5A)(b) of amendment No. 19 states:

``that, having become aware of it, he was not able to prevent its further distribution''.

BT could cut me off from Demon, if Demon were carrying a tobacco advertisement. There would be a potential problem for BT in such circumstances.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

We have considered the matter in detail to ensure that the defence would work for BT in such circumstances. As I understand it, for BT to cut someone off it would have to know that the person was going to visit a particular website on a particular day at a time when a tobacco advertisement was being shown. There is no way that BT could be aware of that, or, therefore, prevent it, so it would have a defence. With current technology, if BT is unaware—which it is bound to be—of one's intentions on a particular Sunday afternoon when one feels like surfing the web, it could not prevent that particular encounter with a tobacco advertisement.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

Let us suppose that a particular ISP was acquiring a reputation for carrying tobacco advertisements outside our jurisdiction and that that provider had to be accessed through BT lines. Theoretically, it would be possible for BT to say, ``We know that that provider is a problem.'' Should we not insert the word ``reasonably'' into paragraph (b) of amendment No.19, to read,

``he was not reasonably able to prevent its further distribution''.

In absolute terms, BT could prevent further distribution. Do we need to provide additional defence by inserting ``reasonably'' to ensure that BT is safe?

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

We have discussed the matter in detail, because it is a new area. Certainly, the legal advice that we have had is that we do not need to do it.

The nature of the defences and the technology that we put in place means that there will be a clear defence for BT in that situation. The hon. Gentleman is absolutely right, however, that were it to become easy, via a future means of electronic distribution, for someone involved in the chain to be aware of, and easily prevent access to, an advertisement, they should be covered under the Bill. That technology does not exist at the moment and I cannot envisage it.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

Internet service providers want to know who will inform them about advertisements. One can imagine that the ISP receives an e-mail from Joe Smith, who says, ``When I surfed the web for such-and-such, this advert seemed to be thrown at me. Do something about it.'' That could be happening 100 times a day, and there are problems in tracking down how that advertisement, or whatever it may be, actually came to be on a web page. What is ``knowing about an advertisement''? Someone could go to the enforcement agency and say, ``I told them the advert was there. Why haven't they removed it?''

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

I am aware of that concern and I have sympathy with it. Clearly, ISPs should not have to be concerned about malicious remarks, phone calls or e-mails made to them in an unco-ordinated way. That clearly would be difficult for them. However, in practice there are mechanisms for dealing with the problem. There is an existing criminal offence, for example, of publishing and distributing child pornography. There is no privileged defence for ISPs against that offence in the way that there is a privileged defence in the Bill. They have no special status in law, which means that they are not aware of the child pornography unless a particular organisation tells them. At the moment, they do not have a specific defence in the case of child pornography that they can act only if they are told by the trading standards association or by a particular organisation. However, there is an effective voluntary system, which seems to work, to co-ordinate concerns, criticisms or people identifying incidents of child pornography. In practice, it clearly makes sense for the ISPs to have a single body to assess what is child pornography and inform them accordingly rather than to have to respond to individual complaints.

The ISPs have set up the Internet Watch Foundation, through which complaints about child pornography on the internet are channelled. The foundation advises whether ISPs need to act in a particular case. We certainly have a lot of interest in that system and think that it could be the type that may help in the Bill.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

Opposition Members are rightly examining in some detail one of the issues that may pose problems. Although we are not yet discussing clause 7, it is relevant to the debate, as it gives sufficient flexibility to tackle any problems that may emerge of the type that Opposition Members suggest are probable.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The purpose of clause 7 is to provide the flexibility to cope with changing technology and deal with different situations that may arise. Even for tobacco advertising, a voluntary system that works within the legal framework is something that we would clearly like. We would be keen to work with the ISPs on setting up a system similar to the one that operates for child pornography.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

Is there not a problem here? Everyone is against child pornography—except child pornographers. There is a huge international consensus against it. Not everyone is against tobacco smoking or tobacco advertising, so it will be much more difficult to establish a voluntary system when there is a financial incentive for tobacco companies to get round the ban and to advertise heavily on the internet.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The circumstances may be more complicated and research will be needed to see how it would work. That is why we are seeking to collaborate with ISPs, and perhaps with the Internet Watch Foundation, on what form such a system would take. The overall principle of a legal framework with an effective voluntary system to ensure that it works is clearly operating successfully against child pornography; we should like to see it working successfully against tobacco advertising.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

To cut to the chase on this, I wonder whether in the Lords the Government may wish to table an amendment to set up a voluntary code—Conservative Members are very much in favour voluntary codes—for co-operation on who can advise the Internet Watch Foundation or whomever. I am a great fan of the Internet Watch Foundation. The ISPs, which set it up using their own money, are to be congratulated on it. The Internet Service Providers Association—a United Kingdom association—deals with only 80 or 90 per cent. of ISPs. The Internet Watch Foundation is under-funded and if it is given another task, I suspect that it will need additional help. We should be worried that an ISP will be set up specifically to deal with tobacco and will not bother to join any such association.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

We considered whether such a system needed to be included in the Bill. We reached the conclusion that it did not and that it would be less burdensome to develop a voluntary system that was not included in the Bill. We are happy to discuss with the Internet Watch Foundation or with ISPs the form that the system should take and how it should function. We have discussed the matter in detail with the Department for Trade and Industry, which takes the lead on e-commerce, to ensure that we find the least burdensome way to implement it. That can be done if people work together.

The group contains a series of amendments that cover a range of issues. We recognise that issues relating to the internet are complex, given the pace of developing technology. In the Bill, we have tried to provide defences that are sufficiently broad to cope with the technology, so that ISPs and others involved in electronic means of distribution will be treated fairly and at the same time we can stop tobacco advertising and promotion in the United Kingdom.

Debate adjourned.—[Mrs. McGuire.]

Adjourned accordingly at two minutes to Ten o'clock till this day at half-past Two o'clock.