My Lords, I will speak to Amendment 268C, which is in my name and that of the noble Baroness, Lady Benjamin, who has been so proactive in this area. The amendment seeks to clarify the threshold for Ofcom to take immediate enforcement action when children are exposed to suicide, self-harm, eating disorders and pornographic materials. It would require the regulator to either take that action or at least provide an explanation to the Secretary of State within a reasonable timeframe as to why it has chosen not to.
When we pass the Bill, the public will judge it not simply on its contents but on its implementation, its enforcement and the speed of that enforcement. Regulatory regimes as a whole work only if the companies providing the material believe the regulator to be sufficiently muscular in its approach. Therefore, the test is not simply what is there but how long it will take for a notice, whenever it is issued, to lead to direct change.
I will give two scenarios to illustrate the point. Let us take the example of a video encouraging the so-called blackout challenge, or choking challenge, which went viral on social media about two years ago. For those who are unaware, it challenged children to choke themselves to the point at which they lost consciousness and to see how long they could do that. This resulted in the death of about 15 children. If a similar situation arises and a video is not removed because it is not against the terms and conditions of the service, does Ofcom allow the video to circulate for a period of, say, six months while giving a grace period for the platform to introduce age gating? What if the platform fails to implement that highly effective age verification? How long will it take to get through warnings, a provisional notice of contravention, a representation period, a confirmation decision and the implementation of required measures before the site is finally blocked? As I indicated, this is not hypothetical; it draws from a real-life example.
We know that this is not simply a matter of direct harm to children; it can lead to a risk of death, and has done in the past.
What about, for example, a pornographic site that simply has a banner where a person can self-declare that they are over 18 in order to access it? I will not rehearse, since they have been gone through a number of times, the dangers for children of early exposure to violent pornography and the impact that will have on respectful relationships, as we know from government reports, and particularly the risk it creates of viewing women as sex objects. It risks additional sexual aggression towards women and perpetuates that aggression. Given that we are aware that large numbers of children have access to this material, surely it would be irresponsible to sacrifice another generation of children to a three-year implementation process.
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I am sure the Minister will seek to give the assurance that Ofcom does indeed have the power under Clause 138 to act immediately by applying the interim service restrictions when the nature and severity of the content demands. We welcome that change, which has been put into the Bill, and the power contained within it.
What we are seeking to probe is the fact that, while the Bill provides that power, by its nature it does not provide a great deal of guidance to Ofcom and the courts on when they should consider that the threshold for interim disruption measures has been reached. Both the scenarios I have mentioned involve what the Bill designates as primary priority harms to children—that is, the most severe harms. The Bill now requires highly effective age verification or age estimation for such content precisely because we cannot allow any such risks.
Any breach risks severe consequences. Will the Minister confirm that any likely failure to comply with the duties in Clauses 11(3)(a) and 72(2) would reach the threshold of severity for Ofcom to apply for an immediate interim service restriction order rather than awaiting the conclusion of the normal processes? If the answer to that question is yes, as I hope it is, Ofcom should consider applying for an order in such circumstances. I therefore ask the Minister whether he would consider making that clear in the Bill or giving other assurances as to how that will be implemented. Furthermore, applications will have to be assessed through the courts applying the same criteria. When these things are brought before the courts, there is always a danger of them being subject to additional review or indeed an inconsistent approach, so it is important that we give the greatest amount of guidance we can through the legislation itself.
There is a clear public expectation that we will tackle these issues. Again, we are not dealing with hypothetical or unprecedented situations. We should look at what has happened in other jurisdictions. In July 2020, France introduced powers for its regulator, Arcom, to apply for blocking orders against relevant ISPs if age verification is not implemented within 15 days of notification. Similar legislation being considered in the Canadian Parliament gives 20 days. By contrast, there is a bit of a gap in the Bill because we have not set a clear timetable on expected compliance.
I stress that nothing in the amendment seeks to undermine the discretion and operational independence of Ofcom. There will be times when the regulator is best placed to understand the situation and act accordingly—perhaps there has been a technical failure—but it is important that Ofcom be held accountable for the decisions it makes on enforcement, so that it needs either to act or to explain why it is not acting. That is what the second paragraph of the amendment seeks to do. It states that when Ofcom chooses not to apply interim orders when it is likely that after 14 days platforms are still allowing children to access primary priority content or pornographic content, it must provide written justification to the Secretary of State within a further period of seven days. So it does not require Ofcom to act but requires it at least to provide a justification for its decision.
Although we have reason to hope that Ofcom will act more swiftly under the Online Safety Bill, we are trying to judge this on the basis of previous experience. There is disappointment at times across the House at the slow progress in enforcing the video-sharing platform regime. It is nearly three years since that regime was introduced but we have still not seen the outcome of a single investigation against a platform. Greater communication and clarity throughout the process would go a huge way towards rebuilding that trust. I look forward to the Minister’s response, and I seek the assurances that lie at the heart of the amendment. On that basis, I commend the amendment to the House.