Online Safety Bill

Elspeth Howe has tabled yet another internet censorship bill planning to define any sex work rejected by the BBFC to be 'extreme pornography'. The first reading of the bill took place in the House of Lords on 10th July 2017. The bill reads:

A Bill to Amend the definition of extreme pornography in the Digital Economy Act 2017.

1 Amendment of the definition of extreme pornography

(1) The Digital Economy Act 20 17 is amended as follows.

(2) In section 15 (meaning of "pornographic material"), in subsection (1), omit paragraphs (g) to (i). (3) In section 22 (meaning of "extreme pornographic material"), for subsections (1) to (4) substitute--

"(1) In this section "extreme pornographic material" means any of the following--

(a) the whole or part of a video work--

(i) if it is reasonable to assume from its nature that the video work was produced solely or principally for the purposes of sexual arousal, and

(ii) if the video works authority has determined the video work not to be suitable for a classification certificate to be issued in respect of it;

(b) material whose nature is such that it is reasonable to assume--

(i) that it was produced solely or principally for the purposes of sexual arousal, and

(ii) that the video works authority would determine that a video work including it was not suitable for a classification certificate to be issued in respect of it."

Elspeth Howe's Online Safety Bill has passed its committee stage in the House of Lords.

The Bill to impose the ISP filtering on all UK ISPS, to require robust age verification for adult websites and to extended this to overseas sites, was widely praised by peers. However the government noted that it would be introducing its own bill to cover these areas next year and would not therefore be supporting Howe's bill.

The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Joanna Shields) summarised the government's position:

I thank all noble Lords for their contributions, and I state one more time that there is no ambiguity about the Government's commitment to launch the consultation shortly after the new year, and to provide for a robust age verification system to ensure that no one under the age of 18 can access pornographic material in the UK. It is a process that has been going on. We have been seeking advice from experts since the manifesto commitment was announced and we are consulting early in the new year. We are 100% committed to that.

I thank the noble Earl, Lord Erroll, for his contributions and for his extraordinary work in leading the development of solutions that will in fact achieve our goal. Many elements of the Bill are incredibly well thought-out and well intentioned, and they will be taken on board in the resulting legislative approach that we take in the new year. This is about timing. This clause requires that the Secretary of State must identify a licensing authority for non UK-based pornographic services, and the noble Baroness's amendment to the clause specifies that the Secretary of State needs a second independent body to conduct appeals. It is a very good suggestion, but it is a bit premature until we finish the consultation.

Regarding the Ofcom/ATVOD role, there is some confusion about the function of ATVOD continuing, but following an Ofcom review, it was publicly announced in October that from January next year Ofcom will take sole responsibility for regulating video on-demand programme services. As a result, it will not continue its co-regulatory arrangement with ATVOD. Let us be clear on this: it is continuing with the function and the obligation of ATVOD, but that is being brought into the Ofcom portfolio.

Earlier in the debate, The Earl of Erroll made an interesting contribution by that privacy implications mean that the age verification approach used by the gambling industry is not applicable to porn sites.

Lord Framlingham:

I am sorry to keep picking the noble Earl's brain, but for the purposes of today's debate, is there any intrinsic difference between the gambling industry and the pornography industry?

The Earl of Erroll:

Yes, there is, interestingly enough. It is to do with the law. Because of anti-money laundering, the gambling industry has to do client checks; it has to behave almost as if it were a bank. As a result, companies have to be able to prove the identity of the person. For various social reasons, it is felt that it is unfair for people to have to declare their identity publicly if they are looking at adult content which it is perfectly legal to watch, or buying alcohol and so on. For instance, if a Muslim buys alcohol and the mosque gets to know about it because their identity had to be declared and retained publicly, they might suffer greatly. Equally, if a Cabinet Minister happens to view some pornography or adult material, that is perfectly legal but, if certain newspapers were to find out, the Minister's career would be destroyed overnight. This is the challenge and the difference. We have to remember that this stuff is legal for the over-18s, but there are social pressures and public opinion, which we may or may not agree with, so I think that we have to protect people's privacy.

Lord Framlingham:

I am sorry to ask again. The example that has been given mentions embarrassment, but it is not technically illegal.

The Earl of Erroll:

The example I have given is one that is career-destroying. The knock-on effect of that could involve all sorts of family repercussions to do with children in school because Daddy or Mummy has just had their career destroyed. We sometimes forget the effect on a family as the result of something that, while it may be regarded by some as socially unacceptable, is perfectly legal. We need to think about that at the parliamentary level.

The bill now moves on to the House of Lords report stage which has not yet been scheduled.

Nearly three-quarters of people questioned for a survey for a christian morality campaign said all websites offering adult movies and pornography should introduce age-verification systems

The Government should impose age verification checks on all websites which offer pornography and 18-rated entertainment such as horror films , Fifty Shades of Grey and Game of Thrones , according to the survey.

The survey of more than 2,000 adults was conducted earlier this month for Christian Action Research and Education (CARE), which is campaigning for internet censorship.

The ComRes survey found 74% of the people they asked said the Government should require sites offering pornography in the UK to put age verification checks in place. A further 73% also said that age verification should apply to 18 rated films streamed online.

The timing of publication of the survey was timed to support Elspeth Howe's latest Online Safety Bill, which was debated in the House of Lords today. The Online Safety Bill required default website blocking for mobile phones, requires strict ID verification for adult internet video and also required foreign porn sites to get a UK licence for its operation on threat of banks denying payment services for unlicensed websites.

The Bill passed its 2nd reading in the Lords and now moved to committee. But the government did rather point out that Howe was stepping on their toes for initiatives that the government would be introducing in the near future.

The Consumer Rights Bill is progressing through Parliament is currently at the report stage in the house of Lords. It will next be debated on 24th November.

Elspeth Howe has again proposed her clause requiring age verification for adult content. It has been kicked out several times in the past as the government recognises the need to work with the telecoms industry rather than impose onerous new laws (of course the government hasn't shown the same pragmatic approach to the adult internet industry).

The new clause was proposed by Baroness Elspeth Howe, Baroness King, Lord Cormack and Baroness Floella Benjamin. It is titled amendment 50D.

"Duty to provide an internet service that protects children from digital content

(1)     Internet service providers must provide to subscribers an internet access service which excludes adult content unless all the conditions of subsection (3) have been fulfilled.

(2)     Where mobile telephone operators provide a telephone service to subscribers which includes an internet access service, they must ensure this service excludes adult content unless all the conditions of subsection (3) have been fulfilled.

(3)     The conditions are--

(a)   the subscriber "opts-in" to subscribe to a service that includes adult content;

(b)   the subscriber is aged 18 or over; and

(c)   the provider of the service has an age verification policy which meets the standards set out by OFCOM in subsection (4) and which has been used to confirm that the subscriber is aged 18 or over before a user is able to access adult content.

(4)     It shall be the duty of OFCOM, to set, and from time to time to review and revise, standards for the--

(a)   filtering of adult content in line with the standards set out in section 319 of the Communications Act 2003 (OFCOM's standards code);

(b)   age verification policies to be used under subsection (3) before a user is able to access adult content; and

(c)   filtering of content by age or subject category by providers of internet access services and mobile phone operators.

(5)     The standards set out by OFCOM under subsection (4) must be contained in one or more codes.

(6)     Before setting standards under subsection (5), OFCOM must publish, in such a manner as they think fit, a draft of the proposed code containing those standards.

(7)     After publishing the draft code and before setting the standards, OFCOM must consult relevant persons and organisations.

(8)     It shall be the duty of OFCOM to establish procedures for the handling and resolution of complaints in a timely manner about the observance of standards set under subsection (4), including complaints about incorrect filtering of content.

(9)     OFCOM may designate any body corporate to carry out its duties under this section in whole or in part.

(10)     OFCOM may not designate a body under subsection (9) unless, as respects that designation, they are satisfied that the body--

(a)   is a fit and proper body to be designated;

(b)   has consented to being designated;

(c)   has access to financial resources that are adequate to ensure the effective performance of its functions under this section; and

(d)   is sufficiently independent of providers of internet access services and mobile phone operators.

(11)     In this section, internet service providers and mobile telephone operators shall at all times be held harmless of any claims or proceedings, whether civil or criminal, providing that at the relevant time, the internet access provider or the mobile telephone operator--

(a)   was following the standards and code set out by OFCOM in subsection (4); and

(b)   acting in good faith.

(12)     For the avoidance of doubt, nothing in subsections (1) and (2) prevents providers of internet access services and mobile phone operators from providing additional levels of filtering content.

(13)     In this section--

"adult content" means an internet access service that contains harmful and offensive materials from which persons under the age of eighteen are protected;

"harmful and offensive materials" has the same meaning as in section 3 of the Communications Act 2003 (general duties of OFCOM);

"material from which persons under the age of eighteen are protected" means material specified in the OFCOM standards under section 319(2)(a) of the Communications Act 2003 (OFCOM's standards code);

"opts-in" means a subscriber notifies the service provider of his or her consent to subscribe to a service that includes adult content."

Update: Howe's amendment thrown out

27th November 2014. See  article from  parliament.uk . Thanks to Therumbler

Elspeth Howe's new clause was defeated by  124 votes to 64. Labour supported the bill, while most, but not all, Tories and LibDems opposed it.

Online Safety Bill [HL]

As introduced in the House of Lords on 10th June 2014 [HL Bill 16]

BACKGROUND

1. The objective of this Bill is to reduce the ability for children and young people to access inappropriate material online and through video on-demand.

2. Part 1 of the Bill takes a three pronged approach to extending online safety measures:

• Internet Service Providers (ISPs) and mobile phone operators (MPOs) would by default provide an Internet service without access to adult content, with adult subscribers able to opt-in to receive such material;
• Electronic device manufacturers would provide a means of filtering Internet content at the time of purchase; and
• ISPs/MPOs would make available information about online safety and schools would educate parents about online safety.

3. Part 2 of the Bill addresses the protections for on-demand programme services:

• Within the UK, requiring access controls for programmes that are equivalent to an "18" rating or greater; and
• In relation to soft and hard-core pornography provided from websites based overseas, providing the Authority for Television on Demand ATVOD the power to direct credit card companies to cease transactions if the services are not provided with suitable age verification.

COMMENTARY

Clause 1: Duty to provide a service that excludes adult content

4. Subsection (1) requires all ISPs to provide an Internet service that excludes adult content, unless a subscriber opts-in and meets the criteria set out in subsection (3). The Bill aims to block "adult content" at the network level -- that is the material coming into a home or to a phone unless a subscriber specifically unblocks that content.

5 . Subsection (2) requires all MPOs who provide an Internet service as part of their telephone service to exclude adult content from that service, unless a subscriber opts in and meets the criteria set out in subsection (3). It would standardise the way MPOs deal with customers accessing adult content.

6.Adult content is defined in clause 6 as containing "harmful and offensive material from which persons under the age of eighteen are protected" where:

• "harmful and offensive materials" has the same meaning as in section 3 of the Communications Act 2003;
• "material from which persons under the age of eighteen are protected" means material specified in the Ofcom standards under section 319(2)(a) of the Communications Act 2003.

7. Subsection (3) sets out the three conditions whereby a subscriber may receive adult content as part of their Internet service. They must "opt-in" to receive adult content, be 18 or over; and have their age verified by the service provider's age verification scheme, which meets the standards set in section 2 on age verification schemes before a subscriber can access adult content. "Opts-in" is defined in subsection (5) .

8. Subsection (4) prevents ISPs and MPOs from being sued should material be accessible or not accessible on the basis of actions taken to comply with section 1, as long as they were following the standards and code set out in clause 2 and acting in good faith.

9. Subsection (6) makes clear that the ISPs can implement additional filtering levels on top of the requirement to offer an internet service without adult content.

Clause 2: Role of Ofcom

10. Clause 2 gives Ofcom a new responsibility to set standards in this area of media consumption. Subsection (1) requires Ofcom to set standards on filtering of adult content and age verification schemes and any other filtering schemes that are operated by ISPs or MPOs. The standards should be reviewed and revised from time to time.

11. Subsection (2) requires the standards set under subsection (1) to be set out in one or more codes of practice.

12. Subsection (3) requires a draft code of standards to be published.

13. Subsection (4) requires there to be a consultation on the draft code with relevant people/organisations.

14. Subsection (5) requires Ofcom to establish a process for handling and resolution of complaints regarding the standards in this section.

15. Subsection (6) requires Ofcom to prepare a report to the Secretary of State about the operation of this Act every three years and at the direction of the Secretary of State.

16. Subsection (7) allows Ofcom to delegate the functions in this section to another corporate body either in whole or in part.

17. Subsection (8) sets out brief criteria for who can be a designated body.

Clause 3 : Duty to provide a means of filtering content

18. Clause 3 requires manufacturers of electronic devices that are capable of internet access to provide a means of filtering content at the time of purchase at an age appropriate level, so that parents are able to choose which material they wish to exclude.

19. The requirement does not anticipate on-going support from the manufacturer after purchase, nor does it set out how the filtering must take place: each type of device can be different.

Clause 4 : Duty to provide information about online safety

20. Clause 4 requires ISPs and MPOs to provide prominent, easily accessible and clear information about online safety to customers at the time of the purchase of a service and to make such information available for the duration of the service, e.g. it could contain information for parents about safe use of social networking sites.

Clause 5: Duty to educate parents about online safety

21. Clause 5 sets out a duty of the Secretary of State for Education to provide means of educating parents of children under the age of 18 about three areas:

a. the opt-in arrangements under section 1 to ensure that children do not access adult content ( paragraph a );

b. other options for online safety for electronic devices, such as filters ( paragraph b ) ;

c. protecting child from other online behaviours that could be a safety risk, such as bullying and sexual grooming (paragraph c).

Clause 6: Interpretation of Part 1

22. Clause 6 sets out the interpretation of phrases in Part 1 the Bill.

Clause 7 : Age verification scheme

23. Clause 7 amends section 368E(2) of the Communications Act 2003, as introduced by the Audiovisual Media Services Regulations 2009 , implementing the Audiovisual Media Services Directive 2009. Section 368E(2) currently says that an on-demand programme service that contains any material which might "seriously impair the physical, mental or moral development of a child" must be made available so that a child will not see or hear it.

24. This clause extends this provision in two ways:

a. stating that the system of access controls must include an age verification scheme; and

b. requiring the access controls to apply to an on-demand programme service which contains harmful and offensive material from which persons under the age of eighteen are to be protected, i.e. to material equivalent to "18" category material.

Clause 8 : Prevention of payments

25. Clause 8 introduces a new power into the Communication Act 2003 to allow the appropriate regulatory authority (in this case ATVOD, The Authority for Television on Demand) to direct a financial institution to prevent payments to a body which does not prevent access to material that comes under section 368(2) of the Communications Act 2003. The model is based on how the law deals with terrorist financing and money laundering in Schedule 7 of the Counter-Terrorism Act 2008. It allows ATVOD to give a direction regardless of where the company is operating.

Clause 9 : Extent , commencement and short title

26. Clause 9 sets out that the Act will come into force six months after Royal Assent and apply across the UK, in the same way as the Communications Act 2003 and the Digital Economy Act 2010. The Act would extend to England, Wales, Scotland and Northern Ireland.

Last year Elspeth Howe sponsored a private members bill that more or less mandated ISP porn blocking software along the lines of that currently being introduced. However it had a nasty twist that all pornographic images be restricted to users opting in to porn access from their ISPs and that allowable porn sites had to implement onerous ATVOD style age verification systems such as demanding a credit card (debit cards are unacceptable) payment prior to any access to porn.

This year Howe has reintroduced her bill with an even nastier kick in the teeth. She want all adult content, not just porn, to be restricted to sites that impose ATVOD style age verification.

The Bill receives its 2nd read in the House of Lord today. The relevant section of the bill reads:

1 Duty to provide a service that excludes adult content

(1) Internet service providers must provide to subscribers an internet access service which excludes adult content unless all the conditions of subsection 3
have been fulfilled.

(2) Where mobile telephone network operators provide a telephone service to subscribers, which includes an internet access service, they must ensure this service excludes adult content unless all the conditions of subsection 3 have
been fulfilled.

(3) The conditions are--

(a) the subscriber "opts-in" to subscribe to a service that includes adult content;

(b) the subscriber is aged 18 or over; and

(c) the provider of the service has an age verification policy which meets the standards set out by OFCOM and which has been used to confirm that the subscriber is aged 18 or over.

Update: Passed 2nd Reading

7th December 2013. See  Hansard from  publications.parliament.uk

The bill passed 2nd Reading after 3 hours of censorial politicians patting each other on the back for this ludicrously worded proposal. Nobody was interesting in actually thinking through the consequences of the proposal. A fine example of how crap law is generated.