My Lords, as I was about to say when Christmas interrupted, I should like to talk about the amendments. We have Clause 5 stand part coming up later, so, rather than having a general ramble around the subject, I thought that it might be worth trying to stick to the amendments, because they are interesting.
I look at the clause from the point of view of trying to make it practical and making the system work. This set of amendments is very useful. Replacing “website” with “electronic platform” in subsection (1), as Amendment 23A proposes, will be helpful, because the remarks with which we are concerned will not always be carried exclusively on a website. What is a website? Is a Twitter feed coming to your mobile telephone a website or not? There may or may not be a website driving part of it. There are things that will not be caught by the provision.
That leads me on to the problem of definitions, because everyone is using the words to mean different things. What exactly is a website operator? Some of the stuff that we are looking at here applies to what I would regard as an ISP, an internet services provider, or a CSP, a communication service provider. To them, the “mere conduit” defence, which is in EU law, can apply, because they are not moderating stuff; they are just channelling the information as it flies through the wires. However, they at certain points become something else, because they might also be providing other services. For example, they may be hosting websites but they may not be operating them. What is their liability? Do they need to take down stuff? Are they regarded as a website operator? The websites are operating on their
hardware and they would probably be capable of taking down defamatory material. Is the website operator the person who is managing the website? Is it the person providing content into the website? Where do the designers and the people who are to do bits of it come in? I ask those questions because we need at some point to clarify who will be responsible for doing what when it comes to taking things down or—here I go straight to Amendments 25A and 25B—being expected suddenly to put up a response to a notice of complaint alongside whatever is on the website.
My daughter is a graphic designer who has designed a couple of websites for organisations. They do not permit feedback on their website, and although I cannot see where that might happen, something might come up. However, if the organisation wanted to modify that website and allow that, there is no way in which they could do it without going back to her and her programmer to provide the facility to do so. These things are not quite as easy as just putting a bit of type into next day’s newspaper. Particularly if it is a large organisation, some of these things will require a whole raft of change management, interfacing with a programmer and things like that. The practicality of this whole thing is the issue.
I can see exactly what they are getting at. It is a good idea in certain cases. One might try to make it mandatory, particularly for sites which are permitting and expecting feedback from the public. The noble Lord, Lord Lucas, made a good point: we must not kill live feedback from the public about things that are going on. That is where the internet can be hugely powerful, to inform one about what you want to do. I use eBay a lot when I want to trade with someone and do business with them, and we rely on that feedback.
There is a good point but we must be practical about it. Something we have to remember is that when we talk about websites, we are not talking about three, four, five, a dozen, 20 or 50 large operators. There are half a billion websites globally, and the number is growing. There are about 100 million UK websites and growing—my figures are probably well out of date by now. It is on that sort of scale, yet most of our comments are being applied to a few large operators. Okay, they have huge profits, et cetera, but these laws will apply also to the small guys: the ones who will have to take stuff down immediately because they do not dare risk falling foul of some law, particularly if a large company pushes them into it. You can stifle the small business and the innovator very easily by having such laws. A small or medium-sized organisation or a person with a little bit of money has no recourse to the law because they cannot afford to go to the law. You have no protection, and must realise that in life—whether it is criminal or civil law, you cannot afford it.
Amendment 24 on associates: yes. Subcontractors and lots of other people are involved, and they probably need to be drawn into it. The amendments of the noble Lord, Lord Lucas, are both very sensible, particularly the business about a moderator. Nowadays, these things are so large that you cannot track everything, so I like his amendments to be made. On his Amendment 25ZA, people will need the assistance of the operator to find things out.
Amendment 25 of the noble Lord, Lord Phillips, suggests that you must be reasonable, otherwise, where do you stop trying to check things? Surely you can only ask someone to act reasonably in trying to find something out. We have this issue coming up in the modifications to copyright law coming up tomorrow in the Enterprise and Regulatory Reform Bill. Part of the reason for some of the British Library issues there is that it cannot “reasonably” find out, for instance, who is the copyright holder for some works. In some cases, you cannot reasonably find out who did something on the internet. It is not practical to do so.
Amendment 29 on the defence being defeated by malice makes a good point. If something is deliberately malicious, or in bad faith, it is quite right that that should be excluded from defences.
All I really want to say is that we must worry about practicality. The difference between the internet and normal printed media is scale and its global reach. If we are not careful, we may end up doing things which apply only to websites where the computers are subject to UK law. The easy way around it is to locate everything outside the UK. That will kill UK business, and we are seeing that in certain other things. People are just relocating overseas because it is easier than dealing with compliance with UK law. It may seem reasonable and all for the greater good of humanity, but the trouble is that in this global environment it is easy to move overseas, and you cannot block people from doing that.
I like most of these amendments. The only thing is that Amendment 25A and 25B are not practical in their current form. They would have to be restricted to websites which had a particular intention and were designed in that way.
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