My Lords, Clause 109 makes changes to the regulations relating to the use of cookies, which, on the face of it, clarify and expand the PEC regulations. Some of the amendments seem benign enough, adding useful flexibility and much-needed clarity; others give the Secretary of State pretty wide-sweeping powers.
Taking a look at new Regulation 6A(1)(a), for example, a future Secretary of State will be able to add new exceptions to the cookie consent requirements. The regulation will also enable variations and omissions. All the Secretary of State would need to do is “consult” the commissioner and such other persons as the Secretary of State considers appropriate—so they will be left with some fairly wide powers and opportunities.
Before turning to Amendment 202 in the name of my noble friend Lady Jones of Whitchurch, I want to quickly respond to Amendments 199, 200 and 201, from the noble Lords, Lord Lucas and Lord Clement-Jones, and very ably supported by my noble friend Lord Chandos. These seek to introduce an additional exemption for cookies used for the purposes of non-intrusive audience measurement and ad performance, both of which are obviously very important to publishers, who need to understand how their websites are used and ensure that advertising is delivering revenue. It is famously hard to predict how successful advertising is; you are never quite sure whether the adverts are hitting home, but this sort of data is critical to that activity.
As noted by others, the Bill currently contains an exemption for cookies used solely for statistical purposes. It may be that the Minister is able to provide comfort to the publishing sector that audience measurement and ad performance are both areas that fall within this new exemption. If he cannot do that today, I hope he will be able to come back to interested colleagues in writing or, as the noble Lord, Lord Lucas, suggested, hold further discussions on this ahead of Report.
We had a number of significant debates during the passage of the Digital Markets, Competition and Consumers Bill regarding the fragility of the publishing sector. Newspapers, sectoral magazines and other sources fulfil a valuable role and we should seek to nurture that as far as is practical.
Amendment 202 in the name of my noble friend is another means of trying to support publishers by probing the potential consequences of the Government’s proposals around centralised cookie controls. Some users may happily accept cookies from the websites of trusted organisations, such as news sources that they use regularly, but generally decline cookies from other websites due to privacy concerns. I would like to know from the Minister how this nuance would be reflected if automatic preferencing is rolled out.
Organisations have also raised competition concerns. The number of mainstream internet browsers is incredibly small and they are operated by firms likely to be designated as having strategic market status under the digital markets Bill. If this legislation establishes a system that makes these browsers some kind of cookie gatekeeper, does that not risk amplifying existing competition barriers in digital markets, rather than bringing them down?
Our amendment would remove provisions around automatic cookie consent. Amendment 203 in the name of the noble Lord, Lord Lucas, proposes a different option, providing a straightforward means for users to override their general preference when using specific websites. That is an interesting alternative, and we need to listen carefully to the Minister’s reply because it gets to the heart of the issue. The noble Lord’s Amendment 204 would also be important, ensuring broader consultation before statutory instruments were brought forward under new Regulation 6B.
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We wholeheartedly agree with the view that the current situation around cookies needs sorting. The system is annoying and needs overhauling so that users are not constantly bombarded by pop-ups, but also so that websites are able to get the kind of audience statistics they need to operate and innovate. We are not convinced that the current proposals strike the right balance. The consultation required under proposed Regulation 6B is both too little and too late, with far too much discretion for the Secretary of State.
There are a number of interesting models and proposals for addressing cookie fatigue out there. My sense is that the department and the regulator would be better off getting together and looking again at those models, possibly on the basis of widened consultation, and then regulating, rather than taking sweeping powers now on the promise that they may get it right in future. The Government have some serious questions to answer here. We are particularly supportive of the efforts of the noble Lord, Lord Lucas, and others to get a better quality of consultation before we take significant legislative steps forward.