Our amendments are designed to enable the regulator to ask the internet service provider to block offending sites. This goes back to the point we made earlier on the differences between sites operated “on a commercial basis” and social media sites and ancillary sites. The proposals as they stand do not give the regulator sufficient powers to enforce the mechanisms proposed in the Bill.
Broadening the definition of “ancillary service provider” specifically to include internet service providers would require the regulator to notify them of non-compliant sites. That will put ISPs in the same bracket as payment service providers, which will be required to withdraw their services if other measures have been exhausted. In the case of ISPs, they would be required to block offending sites.
The amendments would create a simple backstop power where enforcement through the Government’s proposals had not achieved its intended objective and commercial providers had not withdrawn their services, either because the fine does not act as a deterrent or because, due to their international status, they do not need to comply. If pornography providers continued to provide content without age verification restrictions, the regulator would then have the power to require ISPs to take down the content.
We believe that, without amendment, the proposals will not achieve the Bill’s aim, as non-compliant pornographers would not be absolutely assured of payment services being blocked. First, the proposals do not send anywhere near a strong enough signal to the porn industry that the Government are serious about the proposals and their enforcement. Giving the regulator the power but not the stick suggests that we are not all that bothered about whether sites comply. Secondly, we can have no reassurance that sites will be shut down within any kind of timeframe if there is non-compliance. As drafted in the explanatory notes, “on an ongoing basis” could mean yearly, biannually or monthly, but it makes a mockery of the proposals if sites could be non-compliant for two years or more before payment services may or may not act. That does not provide much of an incentive to the industry to act.
Throughout the evidence sessions we heard that there are significant difficulties with the workability of this entire part of the Bill. For instance, many sites will hide their contact details, and a substantial number will simply not respond to financial penalties. Indeed, an ability already exists in law for ISPs to be compelled to block images that portray, for example, child sex abuse. There is also an ability to block in the case of copyright infringement. It therefore seems eminently reasonable that in the event of non-compliance, the regulator has a clear backstop power. We believe that even just legislating for such a power will help speed up enforcement. If providers know that they cannot simply circumvent the law by refusing to comply with notices, they will comply more efficiently. That will surely help the age verifier to pass the real-world test, which is integral to the Bill’s objectives.
Similarly, new clause 11 provides for an all-important speed of enforcement. As it currently stands, the Bill provides fairly feeble powers to an enforcer to give notice to a payment service or ancillary service provider that a site has contravened clause 15(1). Indeed, giving evidence to the Committee, David Austin of the BBFC said of his power to notify sites of their contravention of clause 15 that
“some will and some, probably, will not”––[Official Report, Digital Economy Public Bill Committee,
He welcomed as a second backstop power the ability to notify the ancillary or payment service provider. If providers still fail to act after that second backstop power is invoked, the regulator’s final power is to issue a fine. That is clearly insufficient, and the process itself would take a great deal of time, during which children under 18 would still be able to access pornography, even though the age verification regulator was well aware that there was a breach of clause 15(1).
The amendment would provide the Secretary of State with the power, through regulations, to issue a blocking injunction preventing access to locations on the internet if a court is satisfied that they are being used to contravene clause 15. The Opposition are clear that the power would be necessary only when the other enforcement powers had proved ineffective. Indeed, in evidence the BBFC was clear that fines by themselves would not be enough. David Austin said:
“For UK-based websites and apps, that is fine, but it would be extremely challenging for any UK regulator to pursue foreign-based websites or apps through a foreign jurisdiction to uphold a UK law. So we suggested, in our submission of evidence to the consultation back in the spring, that ISP blocking ought to be part of the regulator’s arsenal. We think that that would be effective.”––[Official Report, Digital Economy Public Bill Committee,
The Government’s own age verification regulator recommends that the amendments be made to the Bill. We very much hope that the Government will consider accepting them.