My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Oxford. He used an interesting analogy of the fireguard; what we want in this legislation is a strong fireguard to protect children.
Amendments 183ZA and 306 are in my name, but Amendment 306 also has the name of the noble Lord, Lord Morrow, on it. I want to speak in support of the general principles raised by the amendments in this group, which deal with five specific areas, namely: the definition of pornography; age verification; the consent of those participating in pornographic content; ensuring that content which is prohibited offline is also prohibited online; and the commencement of age verification. I will deal with each of these broad topics in turn, recognising that we have already dealt with many of the issues raised in this group during Committee.
As your Lordships are aware, the fight for age verification has been a long one. I will not relive that history but I remind the Committee that when the Government announced in 2019 that they would not implement age verification, the Minister said:
“I believe we can protect children better and more comprehensively through the online harms agenda”.—[Official Report, Commons, 17/10/19; col. 453.]
Four years later, the only definition for pornography in the Bill is found in Clause 70(2). It defines pornographic content as
“produced solely or principally for the purpose of sexual arousal”.
I remain to be convinced that this definition is more comprehensive than that in the Digital Economy Act 2017.
Amendment 183ZA is a shortened version of the 2017 definition. I know that the Digital Economy Act is out of vogue but it behoves us to have a debate about the definition, since what will be considered as pornography is paramount. If we get that wrong, age verification will be meaningless. Everything else about the protections we want to put in place relies on a common understanding of when scope of age verification will be required. Put simply, we need to know what it is we are subjecting to age verification and it needs to be clear. The Minister stated at Second Reading that he believed the current definition is adequate. He suggested that it ensured alignment across different pieces of legislation and other regulatory frameworks. In reviewing other legislation, the only clear thing is this: there is no standard definition of pornography across the legislative framework.
For example, Section 63 of the Criminal Justice and Immigration Act 2008 uses the definition in the Bill, but it requires a further test to be applied: meeting the definition of “extreme” material. Section 368E of the Communications Act 2003 regulates online video on demand services. That definition uses the objective tests of “prohibited material”, meaning material too extreme to be classified by the British Board of Film
Classification, and “specially restricted material”, covering R18 material, while also using a subjective test that covers material that
“might impair the physical, mental or moral development”
of under-18s.
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This is wholly different from the definition in Clause 70(2). The Bill’s definition is therefore not somehow aligned with other legislation. It primarily examines intention: why was a particular piece of content created? This is a subjective test that begs the question whether content providers could argue that the intent of the material is not sexual arousal but, for example, art or education, and therefore that it falls outside the scope of the Bill. Subjectivity must be removed as far as possible. Amendment 183ZA proposes adding an objective test: would the content receive, or has it been given, an R18 or 18 certificate, or would it be considered too extreme for either? The subjective test remains but makes it clear that the intention is for the Bill to cover material which, were it physical media, would receive a classification from the British Board of Film Classification that puts it firmly in the adult category. This definition is in line with offline platforms such as cinemas and DVDs and is broadly consistent with the definition already in place for other online platforms, such as video on demand services. Ensuring parity of regulation across platforms should be a key principle.
The Government have stated many times that what is illegal offline should be illegal online. It is illegal for a person to supply age-restricted physical media to someone below the age set by the British Board of Film Classification. This is exactly the same principle the Bill seeks to apply online by using age verification. I know your Lordships will agree that parents will expect the same standards that apply offline to apply online. Content deemed unsuitable for under-18s offline is unsuitable for them online. That is what the public expect this Bill to deliver, and my Amendment 183ZA seeks to do just that. Can the Minister be sure that the current definition will cover all material—18, R18 and unclassified—that would be age-gated for children offline?
That brings me to Amendment 185 in the name of the noble Baroness, Lady Benjamin, which also seeks parity between offline and online content by referencing the video on demand services standards. There is no barrier to finding material online which is illegal or so extreme that it would not receive a BBFC classification offline. Online, such material cannot be included in video on demand services, many of which are pornography providers. A couple of weeks ago, the noble Baroness, Lady Benjamin, hosted a film for us all to watch, and I must say I found that a very daunting video of what actually can happen. In the contribution of the noble Baroness this afternoon, she referred to a lot of what appeared on that day. That was most instructive, and it clearly told me that such material should be banned online and offline.
It seems absurd that if this Bill is passed as it stands, online content delivered by user-to-user services or commercial pornography sites will be held to a lower standard than other online content or content sold offline in shops. Amendment 185 makes it clear that the regulation of pornography should be consistent across all platforms.
I will also make some comments about Amendment 184. Large pornography websites are filled with material that has been uploaded without consent. Material that features children is extremely concerning. Uploaded material also portrays adults filmed with consent but without their consent for it to be shared with the world. We also need to remember that pornography production can involve individuals trafficked, coerced, forced or threatened. There should be a way to verify an individual’s age and their consent. Large porn companies need to be held to account. This Bill can deliver that, and I urge the Government to ensure that Amendment 184 is delivered on Report.
Regrettably, Amendments 184 and 185 would apply only to provider content, not user-to-user content—an issue I raised previously in Committee. That cannot be right and makes me wonder whether a service such as Pornhub might argue that third-party, studio-produced content that it uploads is not provider content and could be another loophole in the Bill. I do not wish to reopen a previous debate in Committee, but there needs to be parity across Parts 3 and 5 of the Bill. I note that the noble Baroness, Lady Kidron, who is a leading light on this issue, has tabled Amendment 123A in an attempt to bridge the gap between Parts 3 and 5. However, I do not think the amendment gets to the heart of the issue. Between now and Report, we need to work together across the House to ensure that this issue of parity between Parts 3 and 5 is dealt with.
I turn to the other amendments in the name of the noble Baroness, Lady Kidron, and others. The need for robust age verification for pornography is undisputed. The Bill clearly creates different regulatory frameworks for different types of content, based on who uploads it rather than its impact. I repeat that pornography, wherever it is found, should be regulated to the highest standards, with consistency across the Bill. That is why I welcome these amendments, which seek to ensure that anyone seeking to access pornographic content is verified as being aged 18 or older and that the standard of proof for their age is deemed beyond reasonable doubt. There needs to be consistent age verification, rather that age assurance, for pornographic content.
I have some questions for the noble Baroness about the detail. I am concerned that the amendments do not deal with different regulatory frameworks for pornography in Parts 3 and 5, creating potential loopholes which could be exploited by large pornography providers. I am particularly concerned about the approach taken in paragraphs 3 and 4 of the proposed new schedule in Amendment 161, and subsection (3)(c) of the proposed new clause in Amendment 142. My Amendments 183A and 183B, which we debated previously, would ensure that duties are consistent across the Bill, and I urge the noble Baroness to reflect on the need for clarity and consistency before Report.
Finally, I turn to my Amendment 306, also in the name of the noble Lord, Lord Morrow, which would ensure that age verification is brought into force within six months of the Bill receiving Royal Assent. A whole generation of children have become adults since the Digital Economy Act was passed but never commenced. That cannot be allowed to happen again and is why we need a clear commencement date in the Bill. Parents
expect age verification—and swiftly. Given the recent welcome announcement that primary priority content, including pornography, will be named in the Bill, that should be an achievable goal.
I hope the Minister will commit to bringing this back on Report. I was concerned on 25 April when he said that the Government intend to commence Parts 3 and 5 at different times. I ask how this would work in practice, as a pornography provider may have its own provider content and user-to-user content on the same service, which implies that one part of the service would be regulated while the other would not. In theory, the content could be the same images. Logically, that content should be regulated from the same moment.
Thousands of children over the years have been let down. We know the harm that is caused by pornography. We legislated in 2017 to stop that harm, yet if the Ofcom road map is accurate it could be two or three more years before pornography is regulated. That is unacceptable. We must ensure that we do all we can to bring in age verification as quickly as possible.