My Lords, I wish to direct my comments to Amendments 123A, 142, 161, 183, 297 and 306, and I want to focus mainly on age verification.
The starting point for effective age verification is being able to define what it is that is being regulated. That is why I support Amendment 183ZA in the name of the noble Baroness, Lady Ritchie. Without that clarity on what it is that needs to be age verified, the expectation of parents will not be met, and children who deserve the strongest and fullest protection will still be subject to harm. The noble Baroness made a convincing case for parity of regulation across different media, and that indeed was the principle behind the definition in the Digital Economy Act 2017. I hope that the Minister will set out either today in the Committee or via a letter afterwards how content which would fall under the different British Board of Film Classification ratings of 18, R18 and unclassified would be treated under the definition in this Bill. I cannot stress this enough: a proper definition of pornography is the foundation of good age-verification legislation. I agree with the noble Baroness, Lady Ritchie, that the definition in the Bill is just not robust.
I stood here on 28 January 2022 at the Second Reading of my Private Member’s Bill encouraging the Government to bring into effect Part 3 of the Digital Economy Act 2017, which would have brought in age verification for commercial pornographic websites. Looking back to 2017, that legislation seems pioneering. Other countries have implemented similar measures since, but our children are still waiting despite the Government’s assurances, when they postponed implementation of Part 3 in October 2019 in favour of the Bill we are debating today, that preventing children’s access to pornography is a critically urgent issue. It still is. On 9 May, the Children’s Commissioner again reiterated the importance of age verification. She said,
“I am categorically clear: no child should be able to access or watch pornography. Protecting children from seeing inappropriate material is critical”.
I congratulate the noble Baroness, Lady Kidron, on yet again trying to persuade the Government to protect children in a robust manner. I am also pleased to support the noble Baroness, Lady Ritchie, as a co-signatory to her Amendment 306. She has learned the lessons of 2017 and is seeking to ensure that this policy cannot be abandoned again. A six-month implementation clause is the very least that we should accept.
It is now well documented that early exposure to pornography carries with it a host of harms—we have just heard something about that from the previous speaker—for the children and young people exposed and for society more widely. The Children’s Commissioner has plainly spelled out those harms in the reports she has published this year. These dangers are ones which parents alone are unable to prevent. With pornography now merely one click away for children across the UK, it is no wonder that the majority of children have already been exposed to pornography before they become teenagers. It is heartbreaking that most children report that they have been exposed to it accidentally. The reality is that robust age verification is an effective antidote to this pervasive problem. Shockingly, only 4.5% of the top 200 pornographic websites have any mechanism to prevent or detect children accessing their sites, and it is unlikely that they would meet the bar of robust age verification.
It is clear that there is almost unanimous support for age verification across your Lordships’ House. However the question before us is whether the Bill as it stands enables a robust enough level of protection. I welcome the duties in Clauses 11 and 22 on age verification. At present, the Bill enables pornographic sites to apply a light touch and, potentially, entirely inadequate age verification. Without a coherent, consistent approach, we are leaving the door open to those wishing to circumvent the prevention of harm we are putting in place.
Considering what we know and have heard about this industry, while the inclusion of age verification checks is welcome, is it really appropriate to leave the critical task of designing and implementing them to the pornography industry? I feel not. Should they be the ones charged with safeguarding our children and young people? Really? Would many in the pornographic industry prioritise their own web traffic over the welfare of children and young people? I think the answers to those questions are very clear.
Amendments 142 and 161 set higher standards so that the test is that there should be a “beyond reasonable doubt” age verification approach which should apply to Part 5 services or material that meet the definition of pornography in Clause 70(2). This will ensure children and young people are proactively protected from the deeply detrimental impact of online pornography.
While I welcome the new schedule introduced by Amendment 161, one of my key concerns is that there should be a consistent approach to enforcement of age verification when it comes to online pornography. Regardless of which websites it is found on, all forms of pornography should be held to the highest possible regulatory standards. I recognise that the noble Baroness has sought to go some way to addressing this with Amendment 123A, but this covers only Ofcom guidance on what constitutes pornographic material, rather than the requirements of age verification per se and the duty under Clause 11. Indeed, the amendment refers to age assurance, not age verification.
I know that we have already debated these points under earlier amendments tabled by the noble Baroness, Lady Ritchie, but the importance of the point cannot be overstated. Indeed, the Children’s Commissioner said the same in her report of 9 May, saying that the requirement for robust age verification must be
“consistent across all types of regulated services – both user to user sites and pornography providers”.
I must ask the noble Baroness, Lady Kidron—who I have admired on what she has been doing here—why paragraphs 3 and 4 of the proposed new schedule in Amendment 161 create different barriers under separate regulatory regimes for Part 3 services and Part 5 services. Why does the new clause proposed in Amendment 142 on the Ofcom guidance on age assurance refer only to Part 5 in subsection (3)(c)? Why is it that regulatory regimes for content produced by providers will differ from those where content is uploaded by users?
As it stands, those two regulatory regimes will be treated differently and, as I have said, I am not reassured by Amendment 123A. My concern is that, without change, we will not see all digital pornography treated with parity, serving only to create ambiguity and potential loopholes. I hope your Lordships will take note of the advice of the Children’s Commissioner and prevent that happening.
I would also like to ask the noble Baroness about her plans for bringing this schedule into effect. Paragraph 8 says the schedule should be in effect within 12 months, but there is no obligation elsewhere to bring in Parts 3 and 5 on that same timetable, so age verification may be required but could not be implemented until other parts of the Bill are commenced.
I urge the noble Baroness, Lady Kidron, to take note of Amendment 306 in the name of the noble Baroness, Lady Ritchie, which puts the commencement elements of age verification into the commencement clause with a timetable of three months for the Ofcom guidance and the rest of Part 5 and relevant enforcement powers within six months. Of course, the noble Baroness, Lady Ritchie, in her earlier amendments, intended for Part 3 to have the same duties as Part 5 and I certainly hope we will come back to that on Report. I was concerned that, at the end of that debate, the Minister said about commencement:
“This may mean there will be a limited period of time during which Part 5 protections are in place ahead of those in Part 3”. —[Official Report, 25/4/23; col. 1201.]
This again reiterates a dual approach to Part 3 and Part 5 services which host pornography.
I hope the Minister will assure us that it is no longer the Government’s plan that pornography will be on the face of the Bill as primary priority content, and that they are making it clear to service providers now that they need to plan to prevent children accessing this material, so it will be possible to commence the duties at the same time. Indeed, this would be in line with the comments made by the Minister in Committee in the other place, although I regret that he was not as ambitious about the timetable as Amendment 306.
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I conclude by saying that we are well aware of the dangers that online pornography poses and, while age verification on pornographic websites is an important step forward, we must utilise this opportunity to ensure that the age verification processes are robust and able to function in such a way as to prevent children and young people being exposed to pornography. This change should be brought in as soon as possible and consistently across the Bill.