I shall happily do that, and will happily continue discussions with my noble friend and others on this point and on the appropriate alternative to the language we have discussed.
On the matter of Ofcom independently auditing age- assurance technologies, which my noble friend also raised, the regulator already has the power to require a company to undertake and pay for a report from a skilled person about a regulated service. This will assist Ofcom in identifying and assessing non-compliance, and will develop its understanding of the risk of failure to comply. We believe that this is therefore already provided for.
I reassure noble Lords that the existing definition of pornographic content in the Bill already captures the same content that Amendment 183ZA, in the name of the noble Baroness, Lady Ritchie of Downpatrick, intends to capture. The definition in the Bill shares the key element of the approach Ofcom is taking for pornography on UK-established video-sharing platforms. This means that the industry will be familiar with this definition and that Ofcom will have experience in regulating content which meets it.
The definition is also aligned with that used in existing legislation. I take on board the point she made about her trawl of the statute book for it, but the definition is aligned elsewhere in statute, such as in the Coroners and Justice Act 2009. This means that, in interpreting the existing definition in the Bill, the courts may be able to draw on precedent from the criminal context, giving greater certainty about its meaning. The definition of pornography in Part 5 is also consistent with the British Board of Film Classification’s guidelines for the definition of sex works, which is
“works whose primary purpose is sexual arousal or stimulation”
and the BBFC’s definition of R18. We therefore think it is not necessary to refer to BBFC standards in this legislation. Including the definition in the Bill also retains Parliament’s control of the definition, and therefore also which content is subject to the duties in Part 5. That is why we believe that the definition as outlined in the Bill is more straightforward for both service providers and Ofcom to apply.
I turn to Amendments 184 and 185. The Government share the concerns raised in today’s debate about the wider regulation of online pornography. It is important to be clear that extreme pornography, so-called revenge pornography and child sexual exploitation and abuse are already illegal and are listed as priority offences in the Bill. This means that under the illegal content duties, Part 3 providers, which will include some of the most popular commercial pornography services, must take proactive, preventive measures to limit people’s exposure to this criminal content and behaviour.
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As I have made clear in previous debates, providers will need to protect children from all forms of online pornography, including illegal pornography or content that the British Board of Film Classification refuses to classify. Providers in scope of Part 5 are publishers which directly control the material on their services, and which can already be held liable for existing extreme pornography and child sexual exploitation and abuse offences captured by the criminal law. The most appropriate mechanism for dealing with these services is, rather than a regulatory regime, the criminal law.
I can also reassure noble Lords that the Government’s new offences relating to sharing and sending intimate images without consent will apply to providers in scope of Part 5. They will be criminally liable for any non-consensual intimate images published on their service.
In relation to Amendment 184, as intimate image abuse will already be illegal in criminal law, it is unnecessary to include a specific duty for Part 5 providers to prohibit this content. Any publisher that shares such images on its site would risk breaking the law and could face a prison sentence. The Bill is also not the right mechanism to regulate content produced or published by the adult industry with regard to the consent of performers appearing in pornographic content. Copyright and contract law already gives performers based in the UK the right to authorise the making of a recording of their performance. Any works recorded and made available to the public without the performer’s consent would constitute an infringement of their rights. As a private right, it is for the performer to enforce this, not a broader regulatory regime.