My Lords, as the noble Baroness, Lady Benjamin, outlined on Monday when we began this debate, her Amendment 87A would require the Government to undertake an investigation of the impact of children’s access to online pornography on domestic abuse, and to review the commencement of Part 3 of the Digital Economy Act 2017.
Her Majesty’s Government are committed to ensuring that the objectives of Part 3 of the Digital Economy Act will be delivered by the online harms framework. Children will be at the heart of our new online safety Bill, which will bring in a new era of accountability for online services. I am afraid I cannot comment on the timings that the noble Lord, Lord Ponsonby, asked about, as announcements about the Queen’s Speech and other things have not yet been made. I am sorry to disappoint the noble Lord on that.
We are confident that the online safety Bill will provide much greater protection for children than would have been the case with Part 3 of the 2017 Act. Unlike that Act, the online harms regime will capture
both the most visited pornography sites and pornography on social media, thereby covering the vast majority of sites where children are most likely to be exposed to pornography.
One of the criticisms of the 2017 Act was that its scope did not cover social media companies, where a considerable quantity of pornographic material is available to children. Research by the British Board of Film Classification published last year found that across a group of children aged between 11 and 17, 44% intentionally accessed pornography via a social media site, compared to 43% for dedicated pornography websites and 53% via an image or video search engine.
Crucially, however, just 7% of children accessed pornography only through dedicated pornography sites. Most children intentionally accessing pornography were doing so across a number of sources, including social media, as well as video-sharing platforms, fora, and via image or video search engines, the majority of which would not fall within scope of the Digital Economy Act, but will fall within the scope of online harms legislation.
Implementing Part 3 of the 2017 Act would therefore leave a significant gap in meeting the Government’s objective of preventing children from accessing pornography —an objective that has also been raised by noble Lords who have spoken in the debate. Our online harms proposals will achieve a more comprehensive approach and allow us to address children’s access to pornography in the round, and avoid children moving from one, more regulated, area of the internet to another, less regulated, area to access pornography.
In addition, recent technological changes could render Part 3 of the 2017 Act ineffective in protecting children if it were introduced as an interim measure. One of the Act’s enforcement powers was the power to require internet service providers to block access to material on non-compliant services. Internet service providers themselves have made it clear that they are no longer the sole gatekeepers to the internet. Current and future developments in the way the architecture of the internet functions mean that they may not always be able to offer effective blocking functions, which might make this power obsolete. These potential enforcement challenges could make age-verification very difficult to enforce via the 2017 Act, even as an interim measure.
The most recent prominent change is the introduction of DNS over HTTPS—that is a bit of a mouthful; it is also known as DoH—which, in specific implementation models, could provide an alternative route to access online content that bypasses the current filtering function of internet service providers. Other proposed internet encryption standards may in future limit even further the ability of providers to filter. The Government are actively engaging with the industry to ensure that the spread of DoH and future internet encryption standards do not cause unintended consequences. For example, specific implementation models of DoH could circumnavigate the current filtering mechanisms of internet service providers, which are used to block access to child abuse content.
The noble Lord, Lord Browne of Belmont, raised the definition of internet service providers in the Digital Economy Act. A reference in legislation to internet
service providers or similar is usually applied in the traditional sense, requiring the major internet service providers to block access to certain websites. The Secretary of State would have to prepare revised guidance to the regulator to implement Part 3 of the 2017 Act. As the noble Lord has said, this guidance, coupled with the broader terminology of an “internet access service”, as used in European Union legislation, might offer sufficient flexibility to extend the duty for internet service providers to cover other means of accessing the internet, where technically feasible. However, the key point that my noble friend Lady Williams of Trafford set out in her letter to the noble Baroness, Lady Benjamin, was that, given the evolving nature of how internet services are provided, this approach lacks the necessary certainty.
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The proposals in the online safety Bill will future-proof the legislation, and address anticipated, longer-term changes to the architecture of the internet, by enabling the regulator to require alternative third parties to carry out blocking measures. This includes any organisation in the internet infrastructure supply chain which facilitates access to a non-compliant service to restrict that access.
It would also not be a quick solution to commence Part 3 as an interim measure, and this would take much longer than the three months that the noble Baroness suggested on Monday. The Government announced in October 2019 that they would not be commencing Part 3 of the Digital Economy Act and, as part of this, took steps to de-designate the British Board of Film Classification as the age-verification regulator. The Government would therefore need to identify a new regulator and ensure that the necessary arrangements were in place before proceeding with formal designation of that regulator. That regulator would then need to produce statutory guidance, as required under the 2017 Act, and consult publicly on this, and the Government would then need to lay regulations and this statutory guidance before Parliament ahead of any new regime coming into force.
As an indication of the potential timescales that would involve, the implementation period for Part 3 of the 2017 Act took over two years, following Royal Assent in April 2017, to the then proposed commencement date of 15 July 2019. Our analysis indicates that it would take a minimum of just under two years to implement the provisions of Part 3 of the 2017 Act. Such a lead-in time, in addition to the nine-month period set out in the noble Baroness’s amendment, would run well into the online safety legislative process, so any benefits of an interim measure would be minimal at best.
Finally, commencing Part 3 of the 2017 Act as an interim measure would create a confusing and fragmented regulatory landscape. It would also require aligning two different enforcement regimes. The regulatory regime under Part 3 of the 2017 Act focuses on a specific requirement on industry to address a specific harm, rather than the wider, more holistic approach to systems and processes under our online harms proposals, which will deliver more comprehensive protections for children as well as for adults.
All pornography services in scope of the duty of care will need to tackle illegal content on their services. Where content is illegal under any criminal law, this will be captured by the online harms duty of care. As the possession of extreme pornography imagery is illegal under existing legislation, it will fall within the duty of care. Our new approach will be more robust than the Digital Economy Act, as it will capture extreme pornography as well as other illegal pornography, including non-photographic child sexual abuse content, which is not included in the definition of extreme pornography referred to in the Digital Economy Act. Companies will need to ensure that illegal content is removed expeditiously and that the risk of it appearing is minimised through effective systems.
In addition, any pornography sites which are designated as category 1 providers will be required to take action on content and activity that is legal for adults but which may be harmful. We expect that priority categories of legal but harmful content for adults set out in secondary legislation will include violent or abusive content. Category 1 services will need to be clear on their platforms about what is acceptable in their terms and conditions and enforce them consistently and transparently.
Given the timeframes for implementing the regulatory framework under the 2017 Act, it is also possible that we would be asking the industry to prepare to comply with the provisions of Part 3 at the same time as the forthcoming online safety legislation, which could distract attention and divert companies’ resources away from preparing for that new legislation, which will deliver better outcomes for children.
We are clear that companies should not wait for legislation to take action to protect children from accessing online pornography, and we are encouraging companies to take steps ahead of the legislation to do just that. To help achieve this, we are working closely with people across the industry to establish the right conditions for the market to deliver age-assurance and age-verification technical solutions ahead of the legislative requirements coming into force. In addition, alongside the full government response, we published an interim code of practice on the steps that companies can take to tackle online child sexual exploitation and abuse.
I can reassure the noble Baroness, Lady Benjamin, and other noble Lords, that we are working at pace to develop online harms legislation and that the online safety Bill will be ready this year. The Government will continue to work closely with your Lordships’ House and others over the coming months as we prepare this vital legislation. We are already working closely with Ofcom to ensure that the implementation period following passage of the legislation will be as short as possible.
The Government also recognise the vital role that education can play in supporting children to navigate the online world safely. A number of noble Lords mentioned that in their contributions. In England, the Department for Education introduced the statutory relationships, sex, and health education curriculum in September last year, alongside the computing curriculum. Both support children’s online safety. The secondary school component of the relationships, sex, and health
curriculum includes teaching that specifically sexually explicit material, for example pornography, presents a distorted picture of sexual behaviours, and can damage the way people see themselves in relation to others and negatively affect how they behave towards sexual partners.
Finally, the noble Baroness has previously raised concerns about Ofcom’s ability to block non-compliant sites and take enforcement action on companies based overseas. I reassure noble Lords that Ofcom will have a robust range of enforcement powers available to use against companies which fail to fulfil the duty of care, or which fail to put in place appropriate measures after being alerted to an issue, no matter where companies are based. Ofcom will be able to issue fines and take business disruption measures against them. This may include removing access to key services to limit the commercial effectiveness of the organisation. For the most serious and egregious failures, Ofcom will be able significantly to restrict access to the services from the United Kingdom. We anticipate that, as other countries introduce similar laws, Ofcom will be able to work with its counterparts overseas to support compliance.
We will be able to deliver the strongest possible protections for children through the online harms framework, rather than Part 3 of the Digital Economy Act. I hope that I have provided some further reassurance that Amendment 87A is not necessary. The Government have demonstrated their strong commitment to protecting children online, a point which ran through all the contributions in this debate. I hope that, on that basis, the noble Baroness, Lady Benjamin, will be willing to withdraw her amendment.