Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020

Motion to Approve

Moved by

That the draft Regulations laid before the House on 15 October be approved.

My Lords, I am pleased to introduce this instrument, laid in both Houses on 15 October, which is being made under the European Union (Withdrawal) Act 2018. These regulations remedy certain failures of retained EU law arising from the withdrawal of the United Kingdom from the EU. This instrument seeks to maintain, but not expand, Ofcom’s remit to regulate video-sharing platform services. This intervention is necessary to ensure the law remains operable beyond the end of the transition period.

The EU’s audiovisual media services directive, known as the AVMS directive, governs the co-ordination of national legislation on audio-visual media services. The AVMS directive was initially implemented into UK law in 2010, primarily by way of amendments to UK broadcasting legislation. The directive was subsequently revised in 2018. The UK Audiovisual Media Services Regulations 2020, which transposed the revised AVMS directive, were made and laid in Parliament on 30 September. Those regulations came into force on 1 November and introduced, for the first time, rules for video-sharing platform services. The Government have appointed Ofcom as the regulator for these services. The new rules ensure that platforms falling within UK jurisdiction have appropriate systems and processes to protect the public, including minors, from illegal and harmful material.

There were three key requirements placed on video-sharing platforms under the regulations. These were: to take appropriate measures to protect minors under 18 from harmful content, to take appropriate measures to protect the general public from harmful and certain illegal content, and to introduce standards around advertising. I also draw the attention of the House to the report from the Secondary Legislation Scrutiny Committee considering this instrument, and I thank its members for their work.

I will now address the committee’s concerns regarding jurisdiction. The AVMS directive sets out technical rules governing when a platform falls within a country’s jurisdiction. First, there must be a physical presence, or a group undertaking, of the platform in the country. Where there is a physical presence in more than one country, jurisdiction is decided on the basis of factors such as whether the platform is established in that country, whether the platform’s main economic activity is centred in that country, and the hierarchy of group undertakings as set out by the directive.

Under the revised AVMS directive, each EU member state and the UK is responsible for regulating only the video-sharing platforms that fall within its jurisdiction. There will be only one country that has jurisdiction for each platform at any one time. However, if a platform has no physical presence in any country covered by the AVMS directive, then no country will have jurisdiction over it, even if the platform provides services in those countries.

Through this instrument, we are seeking to maintain the same position for Ofcom’s remit beyond the end of the transition period. This position allows Ofcom to regulate video-sharing platforms established in the UK and additionally regulate platforms that have a physical presence in the UK but not in any other country covered by the AVMS directive. Although Ofcom’s remit will not be extended to include platforms established elsewhere in the EU, we believe UK users will indirectly benefit from the EU’s regulation of platforms under the AVMS directive. The regulation under this regime is systems regulation, not content regulation. We therefore expect that as platforms based outside of the UK will set up and invest in systems to comply with the AVMS regulations, it is probable that these same systems will also be introduced for their UK subsidiaries.

My Lords, it is hard to do justice in an hour, with a three-minute time limit, to something that, on the face of it, looks like a technical adjustment to take account of our departure from the European Union at the beginning of this year and the end of the transition period. I congratulate the Minister on making it sound as though it is just a very boring technical change—but it is not. This is far more fundamental than it appears at face value. While the Minister rightly says that we are seeking to maintain some authority for Ofcom, that authority was integral to the authority that other member states of the European Union had as the key regulators for those platforms with a prime base in those countries. The Minister has admirably spelled this out in a way that made it sound totally benign.

In this instrument we have a recognition that, without the online harms legislation promised by the former Prime Minister Theresa May, we have a major gap not just in maintaining what Ofcom may or may not have been able to do to date but in terms of any control over these video-sharing platforms.

We are talking about Netflix, Facebook and TikTok—and it is indeed “tick-tock”, because time is passing but the fingers have fallen off the face of the clock. Between now and when, at some point, the online harms legislation comes in, we are at the mercy of these big international tech companies in avoiding child abuse and the dangers that go with it, and we are at their behest regarding their co-operation in ensuring that these platforms are not used for counterterrorism purposes and whether they agree to continue complying with regulation.

Given the time available to me, I simply ask the Minister to spell out to the House when she replies just which of these platforms have a prime base in the United Kingdom. Which of their group systems is at such a level that it is counted as having a prime base here? If it is not here, we are entirely reliant on those areas where that prime base is located, and which therefore have the regulatory power to intervene and take action. This is of course one consequence of coming out of a group of 28 countries that can act decisively and with authority in dealing with large, multinational tech giants based elsewhere, primarily in the United States and, for TikTok, in China.

My Lords, I declare my interests as set out in the register, particularly as an adviser to Station12, with its interests in content production.

These debates on EU exit regulations are important in their own right, but this one is all the more important because of the wide statutory and regulatory work that is under consideration in this fast-moving technology space, as noted by the noble Lord, Lord Blunkett. I welcome the regulations for what they are—confirmation that the European standard of regulation continues to apply after the end of the transition period—but what I am hoping for today is government recognition that, with technological advancement, with some countries banning some of the platforms, with online harm already a major and growing issue, and with serious crimes occurring, it is really important that the Minister and the Government provide us with absolute confirmation that the new legislation will not be sometime early in 2021 but as early as possible, for all the reasons given by the noble Lord, Lord Blunkett. I hope that consultation will take place with consumer and business groups, that it will be extensive and that, in the words of the Minister in another place, the Government intend to bring forward “a pioneering UK regime”, which will be necessary.

I fully appreciate that these new rules ensure that platforms falling within UK jurisdiction have appropriate systems and processes in place to protect the public, but what will be the consequences of Ofcom licences no longer being recognised to regulate video-sharing platform services in non-ECTT member states when licences issued by non-ECTT member states will no longer be recognised in the UK? In practice, the largest VSPs work outside the UK’s regulatory scope and it is critical, in the context of sexual online threats, that the National Crime Agency will continue to co-ordinate activities closely with colleagues abroad to help the regulators with misinformation warnings and action against criminals. This is an international problem and one that, like Covid-19, pays scant regard to national boundaries. International co-operation, as well as effective domestic law, are essential components of success.

My Lords, today’s SI is a bit of a sideshow compared to the important revised AVMS regulations which came into effect on the first of this month, but it is an opportunity to raise a number of issues. I welcome the transposition of these duties on internet platforms into UK law; the noble Lord, Lord Blunkett, spelled out clearly why they are needed. I found the impact assessment for the main regulations refreshingly clear—indeed, it was refreshing to have an impact assessment. My noble friend Lord Foster is in the driving seat for our Benches on these regulations today, so I will confine myself to just a few questions to the Minister.

As the Secondary Legislation Scrutiny Committee asked, who, after the transition period, will regulate to our satisfaction services available in the UK but based elsewhere? Ofcom’s interim plans for regulation of VSPs are limited by country of origin. There are crucial issues about services regulated outside the UK, such as ODPs such as Netflix, regulated in the Netherlands, and VSPs such as YouTube, regulated in Ireland. What happens, in particular, in the event of a no-deal Brexit? That leads to the question of the nature of our future relationship with the ERGA, the European Regulators Group for Audiovisual Media Services, which now has increased importance. The committee rightly says it is vital that these regulations are superseded by new online harms legislation, which we on these Benches have been calling for ever since the publication of the White Paper. Can we expect the overdue response any day?

Do the Government intend their online harms legislation to bring all VSPs that impact on UK consumers under the scope of UK regulation? If not, then the vaunted taking back of control will be a sham. We have seen Ofcom’s interim guidance of 21 October on regulating video-sharing platforms, but what is the point of Ofcom

“developing and publicly consulting on more detailed regulatory guidance for VSPs”

The noble Lord, Lord Singh of Wimbledon, has withdrawn, so I call the noble Baroness, Lady Ritchie of Downpatrick.

My Lords, I thank the Minister for her explanation of these regulations, which address how on-demand programming and video-sharing platforms will be regulated after the Brexit transition period. Like the noble Lords, Lord Clement-Jones and Lord Blunkett, I have certain issues regarding the gap during which there does not seem to be any form of control. When dealing with digital platforms and the potential for child abuse, full regulatory and legislative control is vital, so I have some questions for the Minister.

The House of Lords Secondary Legislation Scrutiny Committee raised some issues, the main one being the lack of an online harms Bill. According to the White Paper published some years ago, it should cover child sexual exploitation, hate speech, terrorist offences, online crime and online bullying and harassment. What is the expected date of this Bill? In her introduction, the Minister said it would be early in 2021. Because of the gravity of the situation, and because of the gap between the end of the transition period on 31 December and whenever this comes into operation, could she specify a date today? During this regulatory gap between the end of the transition period and the implementation of this Act, Ofcom will simply be unable to operate its regulatory function. Are there any plans to provide a temporary power to Ofcom to deal with this regulatory gap until the full legislation is ready for publication, debate, implementation and Royal Assent?

Another area of concern is that both Google and Facebook have their European headquarters in Dublin, where EU regulations will apply, and the new arrangements will apparently not allow Ofcom to intervene where these companies may have UK subsidiaries. Is it not possible, as part of the UK-EU negotiations, to discuss some resolutions in this area, when the issue of the protection of children from sexual exploitation is vital? There are also issues around scamming and people who extort money using these digital platforms. Will Ofcom and the online harms Bill be able to deal with those issues?

The noble Lord, Lord Liddle, has withdrawn, so I call the noble Earl, Lord Erroll.

My Lords, this is only part of a patchwork of regulation and legislation around online harms—very sadly, we do not have the online harms Bill yet. This regulation highlights the whole problem of the UK having jurisdiction over foreign-domiciled—housed or homed overseas—companies. Companies outside the EU can completely dodge it: it does not cover them at all. The noble Lord, Lord Clement-Jones, mentioned the Digital Economy Act. We put a lot of thought, in Part 3 of that Act, into how we could still exert some degree of serious influence over such foreign companies. There was some stuff in there to allow us to ask payment providers, who all rely on getting money, to refuse payments on behalf of things that have breached UK law. I think that is quite a good mechanism, because we have to hit people in the pocket, otherwise they will just get around it.

A lot of this will come down to age-checking; we need a robust, Government-approved age-checking methodology. It is essential to doing anything and moving forwards. That became apparent after the BBFC failed to do anything effectively, although there was British Standard guidance in place to do it. International regulators will need it too; I know the EU and others are very interested in what we are doing in this space. We also need it for other online harms such as purchasing knives, alcohol, corrosive substances and many other things.

It would cost the BSI about £90,000 to take PAS 1296 to a proper, full specification. That could then be used by certification bodies to certify companies’ websites and age-verification providers against a standard. It would also be written in such a way as to be a seed document for an ISO standard, and can then go straight on to becoming—without further cost—an international standard to be used by EU and international regulators in the same way. They could therefore co-operate more easily, particularly if they decided to act against organisations delivering online material to the UK and their own jurisdictions, because they would all have the same concerns about the young.

My Lords, by way of background, I was a director of one of the major advertising and marketing agencies in the UK. There has been an explosion of VSPs, which need control.

I notice in paragraph 2.10 of the draft Explanatory Memorandum that a second statutory instrument is due to be laid; can the Minister indicate when that may be? Paragraph 6.2 says that there will be another instrument to deal with “deficiencies”; is the Minister in a position to tell us what the deficiencies are?

Paragraph 7.2 says that Ofcom may or may not have power in the future. It is not much of an incentive to Ofcom to invest properly with senior people if it does not know whether it will carry on with this in future. I suggest to Her Majesty’s Government that there should be a clear statement that Ofcom will be the body dealing with this.

There are also the points on protection, rightly raised by my noble friend. Terrorist content is a real problem in this country from a security point of view, as we know—quite often from what appear to be genuine, sympathetic human rights bodies, some of them operating legally, some not quite so legally and some illegally. We really need to focus on that because, as the document says,

“VSP providers are merely responsible for the organisation of content”.

If that is the situation, who on earth will control it, particularly for VSPs that are produced outside either the European Union or here in the UK? In relation to this Bill, certain countries are well known for producing highly controversial and illegal VSPs. There is a big problem there.

I also have some questions about paragraph 7.13, which says that, where Ofcom

“become aware of serious instances of … harm”,

et cetera, it should take strong “enforcement action”; it has never taken much strong enforcement action in the past, so there is a problem there. It also says that Ofcom will give guidance. Where is the guidance? Is it coming soon or not? People are now planning for the spring, and have probably decided what will happen, so we need clarification on that.