My Lords, this group of amendments deals with the licensing of foreign pornographic services. As noble Lords can see, I am getting all the fun issues today. I will take noble Lords briefly through what each of the amendments seeks to do and will then talk a little about the background that led us to table them.
Amendment 42A would outline the parliamentary procedure by which the Secretary of State designates which body may be a licensing authority for foreign pornographic services for the purposes of Amendment 42B. Amendment 42B would require providers of foreign pornographic services to be licensed, a licence being granted only to providers with effective age verification mechanisms. Amendment 42C would define a foreign pornographic service for licensing purposes, and Amendment 42D would introduce a maximum sentence of six months’ imprisonment or a fine not exceeding £5,000 for a provider of foreign pornographic services which is convicted of failing to secure a licence. These amendments were tabled, but not chosen for discussion in the Commons, by my honourable friends Dan Jarvis, Andy Slaughter, Diana Johnson and Helen Goodman.
The background to the amendments is that in July 2013 the Prime Minister, David Cameron, asked internet service providers to offer family-friendly filters to all customers, ensuring that they had effectively to choose to turn the filters off. The four major ISPs rolled out these filters to new customers at the beginning of 2014 and will have offered the choice to install filters to all existing customers by the end of 2014. However, Ofcom has found that more than half of parents do not use the parental controls, nor are the controls a complete solution in themselves. Recent research by on demand regulator ATVOD shows that shocking numbers of those aged under 18 are still accessing adult material online, and I shall come back to that in a moment.
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I believe that the Government risk becoming complacent. We think that these amendments will serve to keep up the pressure and act as the next step in the ongoing battle to make children safer online. I regard them as complementary to, for example, the
Private Member’s Bill introduced by the noble Baroness, Lady Howe, whom I admire enormously for her work and persistence in this area.
So what is the situation in the UK, the EU and the rest of the world? The UK Government have promised further legislation to remove any possible doubt about the current position and to enable ATVOD to act against UK providers which offer content that would be forbidden for sale on a DVD, even in a licensed sex shop.
EU-based providers are regulated under the same directive that we use in the UK, but some member states do not consider that hardcore porn “might seriously impair” those under the age of 18. They do not impose the same restrictions as we do in the UK. This means that online services based in, for example, the Netherlands can and do target the UK and provide unrestricted access to hardcore pornography. The directive is to be amended to require all member states to ensure that media services within their jurisdiction keep hardcore porn out of the reach of children and I believe it is important that the UK Government should support that call for change.
Non-EU-based providers are completely unregulated and are responsible for most of the online porn viewing for those in the UK. The leading pornographic businesses make their content available in two ways—by offering access to those who pay for a subscription and by providing free clips, including so-called tube sites such as PornHub, which act as a shop window to promote their core subscription-based services. The tube sites are the key means by which UK children are likely to access hardcore porn and often feature in the top 50 websites being accessed from the UK.
The Government have committed to legislate further for UK-based websites reinforcing the need for age verification mechanisms to be in place but have not yet committed to changing the law to tackle non-EU providers. Technically, foreign-owned websites could be prosecuted under the Obscene Publications Act 1959 if they provide unrestricted access to adult material. The Crown Prosecution Service issued guidelines on this issue in 2005. However, I understand that since 2005 no relevant prosecution has taken place under this law. Perhaps the Minister would like to confirm that this is indeed the case. The lack of clarity and case law means we need effective statutory legislation.
Recently, the Authority for Television On Demand—ATVOD—published the results of a pioneering study that examined whether and to what extent children and young people between the ages of six and 17 were able to access such sites despite what our law says. The research methodology employed was similar to that used to measure TV viewing figures. It looked only at access via PCs and laptops. In other words, it excluded smartphones and handheld devices. Had these been included there seems little doubt that the results would have different and worse.
In a single month, December 2013, ATVOD identified 1,266 porn websites that were being visited by UK users. Only one of these was a service regulated within the UK. This is its shocking summary. It said the survey,
“provides the most authoritative picture yet established of the exposure of children and young people to ‘R18’ material. ‘R18’ is the classification of the strongest legal video pornography permitted
in Britain and covers content which, on a DVD, can be found only in a licensed sex shop or cinema and is restricted to buyers 18 or over. It portrays a range of real, rather than simulated, sex acts”.
It also found:
“At least 44,000 primary school children accessed an adult website … one in 35 of six to 11 year-olds in the UK going online … 200,000 under-16’s accessed an adult website from a computer. This is one in 16 children in that age group who went online in the same month … One in five teenage boys under 18 going online were clicking on porn websites from PC’s, and one adult site—which offers free, unrestricted access to thousands of hardcore porn videos—attracted 112,000 of the teenagers … at least 473,000 children between the ages of six and 17 accessed an adult internet service, mostly offshore—one in ten of young people that age who went online”.
ATVOD’s very sensible suggestion was that the credit card companies and the banks that owned them should stop processing payments to the identified websites. I am told that the financial institutions expressed sympathy but said that they wanted fresh legislation to protect them from any claims. In other words, they refused to act.
Such pusillanimity is disappointing. I seriously doubt that the banks and credit card companies need any legislation to pull the plug on payments to sites that are demonstrably breaking UK law—quite the opposite. Could it not be argued that the banks and credit card companies are themselves committing an offence? By allowing these sites to use their payment system, are they not aiding and abetting the commission of a crime? Are they not helping to sustain the sites that are harming our children? Were these amendments to be passed, the banks and credit card companies would have no hiding place. If a site was not licensed the banks and credit card companies would not be able to provide them with financial services or support. That would definitely do the trick.
When the results of this research came out, the Government announced that a policy on internet filters would deal with the problem of keeping under-18s away. The filters will definitely help but the implication was that nothing else needed to be done. That is fundamentally wrong. The filters should act as a backstop, not as a first line of defence in this case. What should the new law say? The Crown Prosecution Service has been reluctant to authorise actions against hardcore porn websites under the Obscene Publications Act. It says that juries do not want to convict. That being so, the answer is obvious. Remove the need to bring obscenity charges and create a new regulatory offence. That is what a licensing regime would create. Pornography website owners would be required to show that they had a robust age verification mechanism in place to get a licence. Not having one would be a crime.
This is not so very different from what we already do with online gambling websites where age verification and licensing are the key and where the Government took a strong line to protect children and young people with a very high degree of success. I hope the Minister will recognise that these amendments seek to put a similar regime in place. I beg to move.