My Lords, it is a tremendous honour to speak after the noble Baroness, Lady Kidron. I think it fair to say that we would just not be here today if not for the advocacy she has performed on this issue and on the parallel issue of harms, over a great many years. I say to the Minister and to any in the Chamber who are thinking about being in the regulatory space in the years to come that they are going to have the noble Baroness on their back on these issues and it is very well worth listening to her words.
I echo the thanks and tributes the noble Baroness, Lady Kidron, has already paid, but I also want to single out the Minister and thank him for the leadership he has shown on these issues. I know he is very passionate about transforming our relationship in the digital world and the role the Bill can play, and we all recognise his commitment to making sure that the Bill gets over the line. I also thank those from another place who have passed us the Bill and are now closely watching our proceedings in this Chamber. We know that the Bill will be going back there and it is worth bearing in mind that these provisions have a lot of scrutiny and interest from Members of Parliament.
I am extremely concerned that for all the Bill’s strengths—and it has a great many—the measures on age verification are ill-defined and require tightening up in five particular ways. As the noble Baroness, Lady Kidron, alluded to, I shall talk a little bit about the rationale for the amendments in my name and those of the noble Lord, Lord Stevenson, the right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Kidron, and also speak in support of amendments in the same group from the noble Baronesses, Lady Ritchie and Lady Benjamin, and the noble Lord, Lord Allan.
To summarise, I am concerned about a mindset that is in awe of and deeply concerned about a colossal tsunami of legal judicial reviews coming our way as a result of measures to put pornography behind age verification, and that somehow the route out of that is to go into the battlefield with a very loose set of arrangements defined in the Bill and to perform regulation by consultation. Consultations are invaluable when it comes to implementation but are not appropriate for setting objectives. I fear that too often in the Bill at the
moment, it is the objectives that are going out to the public, to vested interests and to the industry to consult on, and that is why the amendment seeks to put some of those objectives in the Bill. We want to give a clear definition for age verification, to put in a clear timetable and to ensure that those consultations, which will be contested, can be clear and deliver clear value.
I want to talk about our effective age-assurance schedule; the introduction of a threshold of “beyond reasonable doubt”; the introduction of independent auditing of the performance of age-verification measures; and our wish to erase proportionality provisions for websites that carry pornographic content, to introduce a clear timetable and to protect underage performers. At present, the Bill gives the example of age verification as just one possible measure for protecting children from accessing pornography. However, nowhere in the Bill is a clear definition or standard set out that age verification should meet. The amendments seek to address that.
At the moment the Bill defines age assurance as
“measures designed to estimate or verify the age or age-range of users of a service”.
That is just far too vague. There is no output-based performance standard. It leaves regulated services free to apply age-verification systems that at present have no clear oversight or quality control. We already know that some major platforms have a public position whereby apparently, they welcome child safety measures, but we also know that a great many pornography operators will resist implementing age verification to gain a competitive advantage or because they believe it will be detrimental to their business model. Leaving this wide-open gap for them to negotiate the operational efficiency of their age-verification measures is a big mistake.
That is why we have tabled Amendment 161, which would introduce an effective age-assurance schedule. That is an essential building block for the other amendments in this group, including the important Amendment 142. The effective age-assurance schedule would set out in the Bill the requirement for age checking about pornographic content to be of the absolute strongest kind. The amendment gives an indication of where the benchmark should be:
“‘age verification’ … beyond reasonable doubt”.
The amendment also sets out the underlying principles of age-verification regimes: that they must be independently audited, effective and privacy-preserving. The amendment has with it a commencement date to ensure that other provisions for age-checking porn can happen as quickly as possible after Royal Assent of the Bill.
We all agree that verifying age should be based not on any particular technology but on an outcome threshold. That is why we have pushed so hard for the “beyond reasonable doubt” threshold. It is an effort to set a clear and high bar for access to pornography. If that does not happen, I fear that, under the cover of proportionality, Ofcom will accept that Part 3 services, the regular websites, will need only to apply estimation techniques rather than demanding an increased level of assurance to ensure that minors cannot access pornography wherever it is found.
We have had feedback from the Bill team that the phrase “beyond reasonable doubt” is more usually found in criminal proceedings than civil legislation. I am very open to a discussion about whether there is a better or alternative phrase. If the Minister would like to address that point from the Dispatch Box, that would be very welcome.
On independent auditing, a number of noble Lords in this Committee have noted their concerns about internet companies marking their own homework. My noble friend Lady Wyld mentioned that and made a comparison with her own daughter’s homework provisions on an earlier day in Committee.
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The fear is that many of the large pornography companies are establishing their own age-verification companies. I admire their enthusiasm but doubt their intentions. It is incumbent on the Government to ensure that the tools they produce and implement meet the requirements of the legislation. For Ofcom to verify the effectiveness of a particular app or piece of software is neither intrusive nor a business restraint; it is simply about giving confidence to parents that the technology is robust and trustworthy. Therefore, we would look for this aspect of the amendment to be built into any age-verification system.
We need to be very clear about what we mean by “proportionate”. We need to make it crystal clear that any pornographic content that meets the Bill’s definition of pornography must always require verification at the outcome standard—we suggest “beyond reasonable doubt”. The Gambling Commission does not apply any proportionality test to age restrictions, and nor do Soho nightclubs or the sellers of pornographic magazines. We have made it clear that the worst content should always meet this bar.
As drafted, the Bill creates a substantial loophole for social media, which my noble friend Lady Harding alluded to. While I appreciate the Minister’s attempts to answer these questions during previous debates, it would be extremely helpful if he could address this point in his comments.
The timetable for these measures is a very significant issue. The noble Baroness, Lady Kidron, made this point extremely well. The Bill leaves the timetable for implementation completely open-ended. There is no clear road map from Ofcom for implementation and there is the opportunity for repeated delays. These measures have an enormous amount of public support and have the attention of both Houses. It is not reasonable to put forward legislation with an uncapped timetable attached.
Age verification is already in place in other countries. In the UK, video-on-demand platforms are already subject to age verification. The pornography industry was already preparing to implement AV in 2019 and therefore is ready to start implementing the changes quickly after measures are enacted. When the regulator and the legislature moved in Louisiana, the pornographic industry was able to bring in an implementation programme extremely quickly indeed.
On this issue, the Minister’s words on timing at Second Reading did not provide any hard dates, sequences or an implementation programme. The Minister said that the Government intend
“to have the regime operational as soon as possible after Royal Assent”.—[Official Report, 1/2/23; col. 774.]
As with Part 3 of the Digital Economy Act, which did not have a statutory deadline, there will always be a tendency to let the best be the enemy of the good, or to fear some kind of backlash from the industry that might delay commencement. That is why Amendment 142, in my name and those of the noble Baroness, Lady Kidron, the noble Lord, Lord Stevenson, and the right reverend Prelate the Bishop of Oxford, would direct Ofcom to prepare and issue a code of practice within six months of Royal Assent.
The issue of age verification and consent for performers is one I feel particularly strongly about. It is absolutely unconscionable that we do not have age verification and consent checks for anyone featured in pornographic content. We heard extremely powerful testimony at Second Reading from those who found that videos of themselves when they were underage were repeatedly featured on pornographic channels. It is impossible for them to take down that material or to reverse any decision they made to take part in one of these productions. It is absolutely our responsibility to change that with this Bill.
This was addressed in the House of Commons by Amendment 33 from Dame Diana Johnson. At that time, the Secretary of State, Jeremy Wright, claimed that the proposals were unworkable. I do not accept those points. There are many industries where the publishers establish the provenance of material, intellectual property ownership and the identity of participants. The music, film, gaming and software industries all have very good examples of good practice.
Many pornography sites already have measures in place to achieve these standards; for instance, OnlyFans, one of the largest players, has made steps in that direction. The pornography industry, often the originator of technology innovation, can surely find mechanisms to address this point—that is my view, and that of over 80% of the UK public. I very much hope that my noble friend the Minister will address this point, which is in Amendment 184, based on the Commons amendment from Dame Diana Johnson.
The measures in this group are not meant to stifle innovation or to hold back the industry—quite the opposite. My noble friend Lady Harding alluded to the Industrial Revolution; taking children out of the pits led to a great investment in, and the growth of, the coal mining industry. Setting clear tracks for progress and putting in place humane provisions create the conditions under which industries can flourish. I fear that, if we do not get this one right, we will be tripping over ourselves; the pornographic industry will become grit in the gears of industry for years to come. By being clearer and more emphatic in these measures, the Bill can be an agent for innovation and encourage a great flourishing of these very important industries.