My Lords, I will speak to Amendment 217 in my name. I express my deep gratitude to the noble Baronesses, Lady Benjamin and Lady Ritchie of Downpatrick, and the noble Lord, Lord Curry of Kirkharle, for adding their names in support. I will also address other amendments in this group that bring about business-disruption measures that enforce compliance with the important measures on pornography and harm that we have scrutinised already and will debate—briefly, I expect—at the end of today.
Amendment 217 is modest, but I believe it could make a big difference. It seeks to use the commercial interests of the pornography sites to change their behaviours by ensuring that their important supply chains are informed of breaches in regulations when they have happened. We know that this works because we have seen it work already. It has been widely reported that, at the start of December 2020, Pornhub, the famous porn site, said in its search bar that it was hosting 13.5 million clips. Then, on 14 December, that figure was dramatically reduced overnight to 5 million.
What had happened was that Pornhub had removed two-thirds of the videos because of a decision by its payment companies, Visa and Mastercard, on 10 December, that they would withdraw payment services from Pornhub’s parent company, MindGeek.
That very important decision followed high-profile press reports, including in the New York Times, that Pornhub hosted vile videos of child abuse, rape and revenge pornography, and videos of people who had not consented to being recorded. These were illegal recordings—Mastercard said that its own investigation confirmed that the site was hosting illegal content. So, quite simply, the scrutiny of the nature of much of Pornhub’s content became too much for those payment companies. To protect themselves and to avoid being tarred by association, Visa and Mastercard had to act, which in turn meant that Pornhub had to act. This is the commercial reality of how the internet will be policed, whether we like it or not. It may well be that commercial interests can drive changes in behaviour much more quickly than blunt regulatory action. At the end of the day, I am interested just in measures that protect children, however they work—and this amendment facilitates effective action.
Payment and ancillary service providers can act in ways that Governments cannot easily do. The Bill could not require such actions as its duties extend only to the platforms themselves and the regulator, not ancillary services essential to the business model; but it can facilitate such interventions by making breaches of regulation transparent to the world. To enable this, the amendment would require Ofcom to notify financial and ancillary services of any breaches of regulations—no ifs or buts, no exemptions and no hiding the bad results. This notification is part and parcel of the process of issuing a provisional notice of contravention in any case, much like when Ofcom gives a notice under Section 110(1). The regulations say that
“OFCOM must carry out a review of the provider’s compliance with the notice”.
This discretion is at the point of choosing to give the notice. All that the process then entails is directed.
There is a significant limitation to this version of the amendment: it applies only to pornography providers covered by Part 5. That is deliberate. Of course, I would like to see it apply to all services with any pornographic content, which I hope will be included in changes that we will see in primary priority content. I will take a moment to flag to the Minister that amendments to this amendment may be needed if there are perhaps—I speak hopefully here—government amendments to the Bill that tweak the Part 3 and Part 5 distinctions before Report. Amendment 217 places no duties on providers of payment or ancillary services themselves; it simply gives them a right to be informed. It is about transparency and awareness, which are fundamental tenets of the Bill. For that reason, I very much hope that the Minister will commit to embracing this simple and proportionate measure.
This transparency measure becomes more pertinent and relevant when we look at other measures in this group, particularly those that introduce service-restriction measures. As other noble Lords will explain in more
detail, I hope, these will allow Ofcom to require the supply chain of companies that support the internet industry—they are often reputable players that can be reached by our UK courts—to cut off essential support services to those who make transgressions. These might include services like hosting and search and, as I mentioned, payment companies like Mastercard and Visa. Without revenue from UK customers, there is little point in any service trying to find ways around access blocks.
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Amendments 218D, 218F, 218J and 218L in this group seek to address the scale and speed of this action. We really should not apply any discount factor to the cost side of the business case based on the chances of being targeted for enforcement. We need to know that there is 100% compliance. These amendments put what the Government have already said on a legal footing. Ofcom should be able to make multiple applications simultaneously—and I note that my noble friend Lord Grade is here; he has spoken very movingly about the challenge faced by Ofcom in trying to create behaviour change in the internet.
To anticipate my noble friend the Minister, I note that in the Committee in the other place the then Minister Chris Philp said that
“procedures under the existing civil procedure rules already allow so-called multi-party claims to be made”.—[Official Report, Commons, Online Safety Bill Committee, 21/6/2022; col. 501.]
I make it clear that the provisions under the existing Civil Procedure Rules relating to so-called multi-party claims are designed for something other than what we consider today. There may be hundreds, thousands or even tens of thousands of interventions needed to get the sites that need to be sanctioned back within the law. That number of defendants or respondents would be unprecedented under such an administrative procedure, and would be another reason for legal challenge to the whole process.
We must also consider the practicalities of going to court before taking action. I support the case for judicial oversight before draconian measures are taken based on subjective decisions about how harmful a site is or how well it is protecting children from any other broader harms. That seems a very reasonable approach—but for something as clear-cut as child access to pornography, where the decisions are black and white, there needs to be no delay to action. We do not need to waste the court’s time protecting pornographers before every enforcement action. With these powers, Ofcom can avoid lengthy battles with well-funded, high-profile sites, leading to it losing its well-founded reputation for effectiveness. Noble Lords should note that, earlier this month, France’s Digital Minister, Jean-Noël Barrot, announced new legislation to give its regulator, Arcom, the ability to block adult sites without going to court. That speaks very fulsomely of its experience in this area.
By way of conclusion, we know that the Government believe that the access and service restriction orders are a last resort, because they amount to, in effect, unplugging a website from the internet so that people in the United Kingdom cannot access them and so that supporting services such as payment services do
not help them. These are very severe interventions, but it is precisely these dramatic measures that will be needed to bring pornographic sites back within the realms of reasonable behaviour of the kind that we expect in the real world.
If a provider outside the UK ignores letters and fines, these measures may well be the only possibility. Many pornography providers probably have absolutely no intention of even trying to comply with the kinds of regulations that are envisaged in the Bill. They are probably not based in the UK, are never going to pay a fine and are probably incorporated in some obscure offshore jurisdiction. Ofcom will need to use these powers in such circumstances, and on a bulk scale. We should not put that enforcement activity at risk of the legal stalling games that these sites will undoubtedly play. For that reason, I ask the Minister to commit to these changes by government amendment before Report next month.