My Lords, short debates can be helpful and useful. I am grateful to noble Lords who have spoken on this group.
I will start with Amendment 39, tabled by my noble friend Lord Bethell. Under the new duty at Clause 11(3)(a), providers which allow pornography or other forms of primary priority content under their terms of service will need to use highly effective age verification or age estimation to prevent children encountering it where they identify such content on their service, regardless of their size or capacity. While the size and capacity of providers is included as part of a consideration of proportionality, this does not mean that smaller providers or those with less capacity can evade the strengthened new duty to protect children from online pornography. In response to the questions raised by the noble Baronesses, Lady Ritchie of Downpatrick and Lady Kidron, and others, no matter how much pornographic content is on a service, where providers do not prohibit this content they would still need to meet the strengthened duty to use age verification or age estimation.
Proportionality remains relevant for the purposes of providers in scope of the new duty at Clause 11(3)(a) only in terms of the age-verification or age-estimation measures that they choose to use. A smaller provider with less capacity may choose to go for a less costly but still highly effective measure. For instance, a smaller provider with less capacity might seek a third-party solution, whereas a larger provider with greater capacity might develop their own solution. Any measures that providers use will need to meet the new high bar of being “highly effective”. If a provider does not comply with the new duties and fails to use measures which are highly effective at correctly determining whether or not a particular user is a child, Ofcom can take tough enforcement action.
The other amendments in this group seek to remove references to the size and capacity of providers in provisions relating to proportionality. The principle of proportionate, risk-based regulation is fundamental to the Bill’s regulatory framework, and we consider
that the Bill as drafted already strikes the correct balance. The Bill ultimately will regulate a large number of services, ranging from some of the biggest companies in the world to smaller, voluntary organisations, as we discussed in our earlier debate on exemptions for public interest services.
The provisions regarding size and capacity recognise that what it is proportionate to require of companies of various sizes and business models will be different. Removing this provision would risk setting a lowest common denominator standard which does not create incentives for larger technology companies to do more to protect their users than smaller organisations. For example, it would not be proportionate for a large multinational company which employs thousands of content moderators and which invests in significant safety technologies to argue that it is required to take only the same steps to comply as a smaller provider which might have only a handful of employees and a few thousand UK users.
While the size and capacity of providers is included as part of a consideration of proportionality, let me be clear that this does not mean that smaller providers or those with less capacity do not need to meet the child safety duties and other duties in the Bill, such as the illegal content safety duties. These duties set out clear requirements for providers. If providers do not meet these duties, they will face enforcement action.
I hope that is reassuring to my noble friend Lord Bethell and to the other noble Lords with amendments in this group. I urge my noble friend to withdraw his amendment.