My Lords, I will speak to the government amendments now but not anticipate the non-government amendments in this group.
As noble Lords know, protecting children is a key priority for this Bill. We have listened to concerns raised across your Lordships’ House about ensuring that it includes the most robust protections for children, particularly from harmful content such as pornography. We also recognise the strength of feeling about ensuring the effective use of age-assurance measures, by which we mean age verification and age estimation, given the important role they will have in keeping children safe online.
I thank the noble Baroness, Lady Kidron, and my noble friends Lady Harding of Winscombe and Lord Bethell in particular for their continued collaboration over the past few months on these issues. I am very glad to have tabled a significant package of amendments on age assurance. These are designed to ensure that children are prevented from accessing pornography, whether it is published by providers in scope of the Part 5 duties or allowed by user-to-user services that are subject to Part 3 duties. The Bill will be explicit that services will need to use highly effective age verification or age estimation to meet these new duties.
These amendments will also ensure that there is a clear, privacy-preserving and future-proof framework governing the use of age assurance, which will be overseen by Ofcom. Our amendments will, for the first time, explicitly require relevant providers to use age verification or age estimation to protect children from pornography. Publishers of pornographic content, which are regulated in Part 5, will need to use age verification or age estimation to ensure that children are not normally able to encounter content which is regulated provider pornographic content on their service.
Further amendments will ensure that, where such tools are proactive technology, Ofcom may also require their use for Part 5 providers to ensure compliance.
Amendments 279 and 280 make further definitional changes to proactive technology to ensure that it can be recommended or required for this purpose. To ensure parity across all regulated pornographic content in the Bill, user-to-user providers which allow pornography under their terms of service will also need to use age verification or age estimation to prevent children encountering pornography where they identify such content on their service. Providers covered by the new duties will also need to ensure that their use of these measures meets a clear, objective and high bar for effectiveness. They will need to be highly effective at correctly determining whether a particular user is a child. This new bar will achieve the intended outcome behind the amendments which we looked at in Committee, seeking to introduce a standard of “beyond reasonable doubt” for age assurance for pornography, while avoiding the risk of legal challenge or inadvertent loopholes.
To ensure that providers are using measures which meet this new bar, the amendments will also require Ofcom to set out, in its guidance for Part 5 providers, examples of age-verification and age-estimation measures which are highly effective in determining whether a particular user is a child. Similarly, in codes of practice for Part 3 providers, Ofcom will need to recommend age-verification or age-estimation measures which can be used to meet the new duty to use highly effective age assurance. This will meet the intent of amendments tabled in Committee seeking to require providers to use measures in a manner approved by Ofcom.
I confirm that the new requirement for Part 3 providers will apply to all categories of primary priority content that is harmful to children, not just pornography. This will mean that providers which allow content promoting or glorifying suicide, self-harm and eating disorders will also be required to use age verification or age estimation to protect children where they identify such content on their service.
Further amendments clarify that a provider can conclude that children cannot access a service—and therefore that the service is not subject to the relevant children’s safety duty—only if it uses age verification or age estimation to ensure that children are not normally able to access the service. This will ensure consistency with the new duties on Part 3 providers to use these measures to prevent children’s access to primary priority content. Amendment 34 inserts a reference to the new user empowerment duties imposed on category 1 providers in the child safety duties.
Amendment 214 will require Part 5 providers to publish a publicly available summary of the age-verification or age-estimation measures that they are using to ensure that children are not normally able to encounter content that is regulated provider pornographic content on their service. This will increase transparency for users on the measures that providers are using to protect children. It also aligns the duties on Part 5 providers with the existing duties on Part 3 providers to include clear information in terms of service on child protection measures or, for search engines, a publicly available statement on such measures.
I thank the noble Baroness, Lady Kidron, for her tireless work relating to Amendment 124, which sets out a list of age-assurance principles. This amendment
clearly sets out the important considerations around the use of age-assurance technologies, which Ofcom must have regard to when producing its codes of practice. Amendment 216 sets out the subset of principles which apply to Part 5 guidance. Together, these amendments ensure that providers are deploying age-assurance technologies in an appropriate manner. These principles appear as a full list in Schedule 4. This ensures that the principles can be found together in one place in the Bill. The wider duties set out in the Bill ensure that the same high standards apply to both Part 3 and Part 5 providers. These principles have been carefully drafted to avoid restating existing duties in the Bill. In accordance with good legislative drafting practice, the principles also do not include reference to other legislation which already directly applies to providers. In its relevant guidance and codes, however, Ofcom may include such references as it deems appropriate.
Finally, I highlight the critical importance of ensuring that users’ privacy is protected throughout the age-assurance processes. I make it clear that privacy has been represented in these principles to the furthest degree possible, by referring to the strong safeguards for user privacy already set out in the Bill.
In recognition of these new principles and to avoid duplication, Amendment 127 requires Ofcom to refer to the age-assurance principles, rather than to the proactive technology principles, when recommending age-assurance technologies that are also proactive technology.
We have listened to the points raised by noble Lords about the importance of having clear and robust definitions in the Bill for age assurance, age verification and age estimation. Amendment 277 brings forward those definitions. We have also made it clear that self-declared age, without additional, more robust measures, is not to be regarded as age verification or age estimation for compliance with duties set out in the Bill. Amendment 278 aligns the definition of proactive technology with these new definitions.
The Government are clear that the Bill’s protections must be implemented as quickly as is feasible. This entails a complex programme of work for the Government and Ofcom, as well as robust parliamentary scrutiny
of many parts of the regime. All of this will take time to deliver. It is right, however, that we set clear expectations for when the most pressing parts of the regulation—those targeting illegal content and protecting children—should be in place. These amendments create an 18-month statutory deadline from the day the Bill is passed for Ofcom’s implementation of those areas. By this point, Ofcom must submit draft codes of practice to the Secretary of State to be laid in Parliament and publish its final guidance relating to illegal content duties, duties about content harmful to children and duties about pornography content in Part 5. This also includes relevant cross-cutting duties, such as content reporting procedures, which are relevant to illegal content and content harmful to children.
In line with convention, most of the Bill’s substantive provisions will be commenced two months after Royal Assent. These amendments ensure that a set of specific clauses will commence earlier—on the day of Royal Assent—allowing Ofcom to begin vital implementation work sooner than it otherwise would have done. Commencing these clauses early will enable Ofcom to launch its consultation on draft codes of practice for illegal content duties shortly after Royal Assent.
Amendment 271 introduces a new duty on Ofcom to produce and publish a report on in-scope providers’ use of age-assurance technologies, and for this to be done within 18 months of the first date on which both Clauses 11 and 72(2), on pornography duties, are in force. I thank the noble Lord, Lord Allan of Hallam, for the amendment he proposed in Committee, to which this amendment responds. We believe that this amendment will improve transparency in how age-assurance solutions are being deployed by providers, and the effectiveness of those solutions.
Finally, we are also making a number of consequential and technical amendments to the Bill to split Clauses 11 and 25 into two parts. This is to ensure these do not become unwieldy and that the duties are clear for providers and for Ofcom. I beg to move.