My Lords, I am grateful to all noble Lords for bringing up these rather difficult points which we have to address. This highlights that trying to fulfil our manifesto commitment is much easier in some parts, but there are also some areas on the edges that we accept are difficult. I do not think we are going to achieve a 100% success ratio and we are cognisant of that.
I shall start by addressing some of the general points that noble Lords made before I get on to the specific details of the amendments. I apologise to the noble Lord, Lord Morrow, for not answering his questions asked at Second Reading. I wrote a long letter on 21 December and I missed out some of his points, although at the end I made an offer to all noble Lords to bring up anything that they wanted.
As far as porn sites overseas is concerned, and how we should enforce this new law against such websites and companies that are not based in the UK, the aim of our policy is to capture all commercial sites regardless of where they are based. Overseas providers will still be incentivised to comply by the elements of the scheme which will disrupt their income streams. ISP blocking powers greatly increase the chance of effectiveness of the whole regime—I will come on to that more in a minute. The regulator will have the power to identify and notify infringing sites and to enable payments providers to withdraw services under their existing terms and conditions. These already require merchants to act legally, both in the country they are based in and in the countries they serve.
It is of course possible that there will be cases where it is difficult to enforce a financial penalty—for example, in the case of websites with no UK presence, as identified by the noble Lord. Even in those cases, however, circumstances may change and the option to enforce will remain. For example, the location of a pornographer may change or enforcement regimes may evolve. The regulator has discretion to take a proportionate approach. What I do not understand, however, is why not even allowing the regulator to include foreign sites is an improvement.
The noble Lord, Lord Morrow, also talked about payment providers and ancillary service providers. I can inform noble Lords that we have had constructive discussions with payment providers and they have indicated that they will act under our regime. The noble Earl, Lord Erroll, confirmed that. There are ranges of potential ancillary service providers. In some
cases, the existing the existing terms and conditions will allow them to act when notified by the regulator. We believe that companies will take responsibility when enabling or facilitating the availability of pornography.
The noble Baroness, Lady Benjamin, talked about ancillary service providers that carry pornography not being blocked. The Bill strikes a balance. It is our belief that the key issue is the commercial providers who monetise pornography attracting large numbers of underage visitors in the process. Like the noble Earl, Lord Erroll, we believe that dealing with the largest of these providers will be a great step towards a reduction in access by children.
The noble Lord, Lord Paddick, referred to content such as revenge porn. This was brought up again by the noble Baroness, Lady Jones. We are clear that abusive and threatening behaviour online is totally unacceptable. Legislation is in place to prosecute online abuse. In the case of revenge porn, Section 33 of the Criminal Justice and Courts Act 2015 created a new criminal offence of disclosing private sexual photographs or films without consent and with the intent to cause distress, so there is existing legislation. There is new legislation and old legislation that has been adapted to deal with that very problem.
I shall now come to the detail of the amendments. Clause 20 provides that the designated age verification regulator may impose a financial penalty where someone has breached the requirement to have age verification controls in place, has not complied with an information requirement or has not complied with an enforcement notice. Clause 20 allows the designated regulator to give an enforcement notice where someone has breached the requirement to have age verification controls in place.
Amendment 56 would reduce the regulator’s discretion by restricting its ability to apply financial penalties for a breach of the requirement to have age verification controls in place. It would remove the power to apply financial penalties to non-UK residents in breach of Clause 15(1). The Government’s view is that the regulator should have the flexibility to apply sanctions to persons who are non-compliant, regardless of where they are based. During the Government’s consultation on these measures, arguments were made over the potential difficulties of enforcement, especially on taking action against non-UK companies. We are clear, however, that a flexible approach that includes a number of options is needed. We accept that there may be difficulties in taking enforcement against companies based overseas. However, as I said, we should not restrict the options available to the regulator, which should be able to take a view on enforcement based on the particular facts of any given case.
The Government recognise that financial penalties may not be effective in every case. That is why we have included other options for the regulator. For example, the power enabling the age verification regulator to instruct ISPs to block content to sites that remain non-compliant greatly increases the effectiveness of the whole regime and of compliance by providers of pornography. Our regime is designed to ensure that financial penalties are not the only sanction; there is also the ability to disrupt non-compliant sites’ business
models. But we should ensure the regime allows for both fines and enforcement notices as appropriate to the individual, regardless of where they are based.
Clause 22 is an important provision containing powers at the heart of the regime to enable the age verification regulator to notify payment service providers and ancillary service providers of non-compliant persons. Amendment 58 would make it mandatory for the age verification regulator to serve notice to any payment services provider or ancillary service provider under Clause 22(1) where it considers that a person is contravening the age verification requirements in Clause 15(1) or making prohibited material available on the internet to persons in the UK. We need to be careful to ensure that we do not constrain the BBFC, which is expert in this area and committed to its role as an AV regulator in carrying out the role in the most effective way. It is important that the regulator has the flexibility to take the most appropriate action depending on the facts of any given case.
Amendment 63, in the name of the noble Baroness, Lady Benjamin, would require the regulator to publish guidance under Clause 22(7), rather than having the discretion to do so. I realise that the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have made recommendations about increasing the level of parliamentary oversight for this guidance. We have listened to and noted those concerns; we are carefully considering our response to the committees as a matter of priority. Again, as I have said, we will be able to outline that before Report. On the question the noble Baroness asked about who would be classed as an ancillary service provider, I will correct something she said. I think what I said was that the Government, under the legislation, believe that internet sites can be classified by the regulator as ancillary service providers— it is ultimately the regulator’s decision—where they are enabling or facilitating the making available of pornographic or prohibited material. If that is the case, it could be notified.
Amendment 65 would require payment services providers and ancillary service providers to block payments or cease services provided to the non-complying person where the regulator has given notice to the payment services provider or ancillary service provider under Clause 22(1). This approach represents a considerable change. We are quite clear that it is not necessary. It is important that the BBFC has the freedom to build effective working partnerships with payment service providers and ancillary service providers. As part of a proportionate system, it is not necessary for the BBFC to begin regulating those services. We think that the focus should rightly be on the providers of pornography.
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Amendment 68B, in the name of the noble Earl, Lord Erroll, relates to Clause 24 and would allow the regulator to exercise its powers in relation to providers wherever persons under the age of 18 were accessing pornographic content. Clause 24 allows the regulator to act in proportionate way, specifying that the regulator may choose to exercise its powers principally in relation to persons who, in the age verification regulator’s opinion, make pornographic material or prohibited
material available on the internet on a commercial basis to a large number of persons, or a large number of persons under the age of 18, in the UK. Importantly, Clause 24 gives the regulator discretion, which means it is not bound by the provisions in Clause 24(1). Therefore, the amendment is unnecessary.
Amendment 69A, in the name of the noble Lord, Lord Paddick, would require that websites containing pornographic material made available on the internet not on a commercial basis be given a warning stating that the material which follows is pornographic material. This is an interesting idea and I understand that some sites already have equivalent systems in place. The focus of the Government’s policy is on the commercial providers of online pornographic content. Such companies profit from providing content to UK users with little or no protections to ensure that those accessing it are of an appropriate age. The Bill is a big step and we should not seek it to be a solution to all problems related to children’s access to online pornography. We want companies to take more responsibility where pornography is available and agree that more can be done. The age verification measures in the Bill are a significant starting point and should be given time to succeed before seeking to go further.
Amendment 237, in the name of the noble Baroness, Lady Benjamin, would make Part 3 and Clause 80 come into force at the end of the period of one year beginning with the day on which this Act is passed. Following Royal Assent, the Government intend formally to designate the BBFC as regulator and expect to be in a position to commence the provisions within 12 months of that date. Clearly, we want the provisions to be in place as soon as practicable. However, it is important that the Government retain flexibility without being too prescriptive on timings at this stage.
The noble Lord, Lord Paddick, and the noble Baroness, Lady Benjamin, were right to ask how we prevent porn being available on social media. It will depend on the facts of any given case, but should a social media site focus solely on pornography we think it right that the regulator is able to consider whether the site is making pornographic material available on a commercial basis. However, where pornography is not a substantial part of the site, that will of course be less likely. As I have said before, we think the regulator should be able to consider where sites are enabling and facilitating the availability of pornography. In this case, they would not be subject to the regulatory powers but would be notified that pornographic material was available without age verification, but they would not be required by the Bill to act. We want to achieve a consensual regime. As I have said previously, we are in contact with many social media sites, many of which are keen to act because their reputation and their brand are dependent on being seen to do so.
There has been quite a lot of detail in my response, but I hope that it will be enough for the moment to allow noble Lords not to press their amendments.