Audiovisual Media Services (Amendment) Regulations 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Audiovisual Media Services (Amendment) Regulations 2021.

My Lords, I am pleased to introduce this instrument, which was laid in both Houses on 25 February and is being made under the European Union (Withdrawal) Act 2018. This instrument will remedy certain failures of retained EU law arising from the withdrawal of the United Kingdom from the EU. It addresses minor and technical issues in domestic law after transposition of the audio-visual media services directive by the Audiovisual Media Services Regulations 2020, and is necessary to ensure that the law remains fit for purpose beyond the end of the transition period.

These regulations amend references to EU legislation, substituting domestic law references and making references to EU legislation ambulatory where appropriate. They also remove the requirement for Ofcom to notify the European Commission of services in scope falling within the UK’s jurisdiction, and address Ofcom’s co-operation with EU member state regulators.

I will now look at the regulations in more detail. The audio-visual media services directive, also known as the AVMS directive, is long-standing EU legislation that co-ordinates the regulation of audio-visual media services. The AVMS directive was revised in 2018 to take into account changes to the media landscape since the last revision of the directive in 2010.

The UK’s Audiovisual Media Services Regulations 2020, which transposed the revised AVMS directive, were made and laid in Parliament on 30 September 2020. Those regulations came into force on 1 November 2020. They introduced rules for video-sharing platform services for the first time, with Ofcom as the national regulatory authority for video-sharing platforms falling under the UK’s jurisdiction. The new rules for video-sharing platforms stipulate that platforms which have the required connection with the UK must have appropriate systems and processes to protect the public, including minors, from illegal and harmful material. The “required connection with the UK” means that if the platform provider is established in the UK, or if a group undertaking of the provider is established in the UK and the service is not regulated by another EEA country, Ofcom will in those circumstances have jurisdiction to regulate the video-sharing platform service.

Three key requirements have been placed on video-sharing platforms: first, to take appropriate measures to protect minors aged under 18 from harmful content; secondly, to take appropriate measures to protect the general public from material inciting hatred or violence, and certain illegal content; and thirdly, to introduce standards around advertising.

Ofcom is currently actively engaging with platforms that may be affected and has published guidance on scope and jurisdiction. In March, Ofcom published draft guidance for consultation on the list of measures that video-sharing platforms can take to protect users from harmful material. More vigorous regulation will commence once all guidance on video-sharing platform regulation has been published later this year.

My Lords, I appreciate the explanation given by the Minister. I have to mind the old joke about déjà vu all over again, because we have been here and will undoubtedly be here again to discuss the necessary measures that, I hope, will emerge from the online harms legislation, which we are all anticipating and looking forward to scrutinising following the Queen’s Speech in May. We are looking forward to it, because the situation that we face at the moment, as outlined by the Minister, is totally unsatisfactory.

I appreciate that this is just a technical measure, and that is why I can be brief. However, the technicality of providing a power to Ofcom to collaborate and share illustrates the paucity of any real measures that we have to hand to be able to deal with the situation whereby a platform is outside the UK but is beaming into and is used extensively in the UK. That is the problem, as we all know, with this technical regulation. Very few, if any, of the major platforms that we are talking about fall into the category of being overseen by Ofcom, and we need collaboration across Europe and the world to deal satisfactorily with online harms.

That has been thrown into contrast by one of the continuing emotional spasms during the recess—namely, the issue of whether boys are a dangerous species in our schools. I do not underplay it; I have written about it, and do not want to be misinterpreted. There is a real problem. But the problem, in part at least, springs from pornographic material that, sadly, is available for young people to access, and the distorted view of relationships, including sexual and emotional relationships, which are affected by it.

I wanted to put on record this afternoon that it will be absolutely crucial that we get the new legislation right and ensure that the powers will be available, whether the major platforms and big tech like it or not, in order to be able to protect our citizens, and particularly our young people, from the harms that they currently face.

My Lords, last November, when we debated the earlier SI, I welcomed it but raised a number of concerns. Frankly, today’s extra-technical fixes do not allay those concerns. A critical concern was about who would regulate to our satisfaction services that are available in the UK but are based elsewhere. The Minister said in November:

“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.”—[Official Report, 27/11/20; col. 440.]

So we have no say in the regulation of on-demand platforms, such as Netflix, which will be regulated in the Netherlands, and video-sharing platforms, such as YouTube, which will be regulated in Ireland.

Today’s SI does not help. It merely replaces the duty on Ofcom to co-operate with EU regulators with a power for Ofcom to do so. As the Minister explained last November,

“Ofcom will rely on informal co-operation with the relevant EU regulatory authorities for information regarding determination of jurisdiction and discussions on co-operation and consistency of approaches towards video-sharing platform regulations”.—[Official Report, 27/11/20; col. 451.]

So it is down to informal co-operation rather than, as previously, having membership of the European Regulators Group for Audiovisual Media Services, which sets the rules for how all other EU regulators will operate.

I have frequently asked whether Ofcom will seek at least observer status of ERGA so that we may have something a little more than “informal co-operation”. Can the Minister tell us whether the Government are urging Ofcom to do so? Of course, if it were significantly updated to cover ODPs and VSPs, the Council of Europe’s Convention on Transfrontier Television could provide a way for us to have a greater say, as, along with most EU countries, we remain in membership of the council. Are the Government considering this? Can she outline the intended regulatory regime once we have our much-awaited online harms legislation?

My Lords, the regulations are obviously necessary. However, the powers cover only those platforms that fall within UK jurisdiction, as has already been said, and where it is necessary to protect the public, including, especially, children, from illegal or harmful material. We are immediately in difficult territory. In order to become subject to control, the definition is limited to those VSPs that either display a physical presence in the UK or are based or established here. Those companies with a presence elsewhere cannot be controlled, and only one country can have control at any time. Many of the VSPs are international concerns, as we know, such as Facebook or YouTube, where video material is widely propagated. Examples of child sexual abuse being displayed are, sadly, becoming more common, and the Internet Watch Foundation, with which I am connected, has drawn attention to the growth of undesirable content.

Also, the regulations on the powers of Ofcom do little to control online advertising, which is another source of concern in the need to protect children, in contrast to TV advertising, which is controlled. Few of the most widely patronised VSPs meet our requirements for Ofcom or government attention or control. Many of the most popular, including Facebook and YouTube, but also Instagram and Twitter, are outside our jurisdiction. Some are based in EU countries, including Ireland. That leaves us unable to intervene effectively and our citizens in danger. Can my noble friend advise how else we can gain more control in view of the rules that we now accept? The new online harms Bill, which we are promised, is still awaited with interest, and perhaps we can hear today from my noble friend how it might deal with the obvious limitations we currently have.

I have been arguing in the field of technological legislation that we should try to ensure that it is smart legislation—that is, updatable, like the software we use in computers and cars. If it is not, technologically will inevitably always be ahead of the regulators and any desirable controls the Government might need to protect us. In view of the fact that the EU and other countries have their own criteria to apply to online content, which might be very different to our own, what steps are being taken to try to maintain that common approach, with common limits on acceptability of content?

My Lords, I thank the Minister for the straightforward way in which she introduced this statutory instrument. It is, as she said, a technical instrument and I even welcome it in part. It is a positive that the UK will continue its commitment to the European works regime. As a generator of content, our creative industry will be a beneficiary of this regime and it makes sense to continue that involvement.

However, I can only echo the concerns expressed by others this afternoon about the limitations left unanswered by this legislation. With so much content being generated by platforms based outside the UK, our users of social media in particular and platforms generally are being left highly vulnerable to what is produced that is not regulated from the UK. This is a matter not just of the pornography that is being piped out and, as the noble Lord, Lord Blunkett, said, inflicting damage on our youngsters. An immense amount of really dangerous stuff about suicide gets circulated online. On anorexia, thinness websites are pushing our young ladies into starving themselves. It is really appalling. It will not be stopped by the regulators in other countries and I am afraid that our regulators will not be able to do it.

We have heard many times already this afternoon about the long-awaited online harms Bill, but when will it actually hit the statute book? How extensive will it be? Anyhow, I query whether Ofcom will be ready to deal with it when it arrives. From looking at its website, it is desperately trying to recruit people to deal with this. It still needs a principal to deal with online harms —somebody who can build and lead a multidisciplinary force across Ofcom to deliver high-quality policy and advice on complex issues. It is still hunting for a policy manager to support the development of its approach to regulating online harms. Can the Minister reassure us that Ofcom will be able to fulfil the duties being imposed on it to protect our country from online harms?

My Lords, I welcome my noble friend the Minister to her place and thank for the very clear exposition of and background to the regulations before us. I declare my interest as on the register as chairman of the Proof of Age Standards Scheme board.

I will make two points and ask my noble friend a question on each. Is she in a position to give us the timetable for the online harms Bill, in particular as regards identifying and proving the age of minors to ensure that they are not subject to harmful images and content online? What discussions has she had with her opposite number in the Home Office, in particular my noble friend Lady Williams, with whom we have been working closely at PASS in this regard, to establish a digital ID and to verify how proof of age for the purposes of such a digital ID for young people can be set up? It is extremely important that these departments co-operate and work very closely together in this regard. I would welcome an early meeting with my noble friend if that is potentially helpful.

Secondly, on the issue raised by the noble Lords, Lord Blunkett and Lord Foster, and others who have spoken so far, all making the same point, how do the Government intend to resolve the question of jurisdiction and the potential for video service providers to escape the control of Ofcom, although offering services in the UK? What provision do the Government intend to make in that regard?

Finally, paragraph 7.2 on page 4 of the Explanatory Memorandum says:

“The references in the transposing Regulations which are being fixed include amending and substituting references to EU legislation with references to domestic law”.

The duty on Ofcom to co-operate with the European Commission, and presumably other member state bodies, is therefore being replaced with powers for it to co-operate with EU regulators. How does my noble friend expect that these changes will be made? Personally, I regret that there is a downgrade from a duty to powers for it to co-operate. I will follow this very closely.

My Lords, as the noble Lord, Lord Blunkett, indicated, this debate is but one small piece of a larger jigsaw which Parliament will have to put together in the new Session in May. I pay tribute to the Secretary of State and his colleagues, including the noble Baroness, Lady Barran, for the painstaking way in which they have gone about consultation and involvement in preparing for the online harms legislation. I hope that they will go one step further by including pre-legislative scrutiny in the process by which the proposals will be brought forward.

Nineteen years ago I sat on the Puttnam committee, the Joint Committee of both Houses which gave pre-legislative scrutiny to what became the Communications Act 2003. That pre-legislative scrutiny made for a better Bill. The SI before us makes a number of tweaks to that Act, which was, of course, the legislation which created Ofcom. I remember that pundits at the time were predicting that the media vested interests would overwhelm Ofcom—or, as it was indelicately put then, “Murdoch’s lawyers will have them for breakfast”. This proved not to be the case, but there is no doubt that the same vested interests will be at work trying to draw the teeth of legislation designed to limit their powers to make money. As my noble friend Lord Foster and the noble Lord, Lord Kirkhope, indicated, who regulates what could turn out to be a lawyer-fest.

The Communications Act 2003, which we are amending today, contains the crucial Puttnam amendment, imposing on Ofcom the statutory duty to further the interests of citizens. That has been crucial in ensuring that regulatory decisions are not dictated by market criteria but governed by proper considerations of the broader public interest. It is essential that the Puttnam protections appear in the new Act. That statutory duty becomes even more important as Ofcom takes on the role of online regulator. As the noble Baroness, Lady Wheatcroft, outlined, it will be essential in reinforcing its ability to protect citizens, including children and the vulnerable, from a range of social harms as well as the threats to our democracy via fake news and disinformation.

My Lords, it is a pleasure to participate in this short debate. I congratulate my noble friend the Minister on the way that she introduced the regulations. In doing so, I declare my relevant interest as a board member at Channel Four Television Corporation.

These are technical regulations, so forgive me if my questions are of a somewhat technical nature. What mechanisms and technologies are currently in place to ensure that the power to co-operate can be exercised effectively and in real time? To echo my noble friend Lady Wheatcroft’s point, does the Minister believe that Ofcom currently has the resources and expertise required in this area in terms of individuals, and the hard and soft resources to back this up?

In her opening, the Minister set out the learnings that would come through Ofcom’s engagement with VSPs. How will those learnings feed into the online harms legislation process and can a mechanism be established to ensure that they can be fed into any pre-legislative scrutiny in real time, because they could be invaluable to that process? I agree with my noble friend Lady McIntosh that, as with so much that we are considering now, a lot of this tracks back to the need for a distributed digital ID. Can the Minister outline some of the work going on in her department? What can be done to accelerate that and what proofs of concept may be undertaken that could be particular to the issues we are discussing?

Does the Minister agree that we have world-class broadcasters and content producers in the UK, and that it is essential that we have world-class online harms legislation? Will she conclude the debate by giving us a date for when the legislation will be introduced?